Precedents are being set, whether we like it or not.
When keen minds like Andy McCarthy and Dan McLaughlin are wary of impeachment, proponents like myself ought to pause, consider their arguments, and contemplate whether their wariness is a warning to be heeded.
The concern about what precedent is being set is a legitimate one, although I’d note we’re already in uncharted territory. Just about every president who didn’t win reelection was upset about his loss, and Donald Trump isn’t the first candidate to wonder if the results were entirely legitimate and that the right man had won. But he is the first president to hold a rally and rile up his angry supporters in Washington, D.C., the day Congress certifies the election results, and we’ve never seen a presidential transition marred by something as appalling and chaotic as Wednesday’s bedlam. Trump told the crowd that Mike Pence could reverse the outcome of the election, and then tweeted Pence “didn’t have the courage to do what should have been done.” The angry mob that ransacked Capitol Hill went through the halls of Congress, specifically chanting, “Where is Pence?” If that isn’t the sort of action that warrants an expeditious removal from office, what is? It makes the Ukraine phone call look like a grammatical error.
Precedents are being set, whether we like it or not. Now Congress has to decide what precedent it wants to establish for the appropriate consequence when a president does something like this.
I come closer to the Andy McCarthy position than the estimable Ed Whelan on the question of whether the 25th Amendment applies to this situation, at least for now. Ed points out that the president is already being described by unnamed aides as “mentally unreachable.” (Say, White House aides, do we really still need to remain anonymous for this stuff? Is that not alarming enough for you to allow your name to appear in print? What, is this staffer still hoping for a good letter of recommendation from Trump?) “Mentally unreachable” does sound close to the Constitution’s description of a president being “unable to discharge the powers and duties of his office.”
But . . . it would be easier to draw this conclusion definitively with sound, on-the-record accounts and specific examples. Is the president hallucinating? Hearing voices? Seeing people who aren’t there? Is he threatening to launch nukes or declare martial law? Ignoring or disregarding advisers, by itself, is not a sign the president has lost his marbles.
Is Trump any crazier today than he was last week, last month, or last year? There’s crazy as in “mentally ill” and there’s crazy as in “spectacularly unwise.” As far as we can tell from the president’s increasingly less frequent public appearances, he is capable of exercising his duties; he just doesn’t want to do it. We wouldn’t want the bar for removing a duly-elected president from office to be lowered to “he’s acting weird.”
That leaves impeachment. Dan is completely correct that “removing Trump from office by a clear, bipartisan action (by Pence, or by a large number of Republican senators) might possibly avoid tearing the country apart. But a hotly contested effort to do so would be worse than what we have now, imposing long-term political damage and possibly inciting more violence rather than calming the waters.” And Andy is right that “it would be difficult at this point to impeach a president with anything approaching the legitimate due process we would want as a precedent for future impeachments.”
But highly abnormal circumstances warrant highly unusual responses. There’s nothing normal about any of this, so it’s tough to expect the response from Congress to be “normal.”
And the problem is that not invoking the 25th amendment and not impeaching Trump means that the congressional response to his actions this week will be . . . nothing, really. A lot of senators and representatives denounced Trump and a lot of his staffers and cabinet members resigned, concluding they couldn’t work in good conscience any longer. We’ve been there already with James Mattis and John Kelly and Rex Tillerson and H .R. McMaster.
Without a serious congressional response to the president’s role in the disruption of its duties, January 6, 2021, will become just another day of Trump being Trump . . . except that it wasn’t. It was much worse.
Then again, this debate may be moot. Representative Katherine Clark of Massachusetts, the fourth-ranking House Democrat, told CNN the House could vote to impeach Trump “as early as mid-next week.” Talk about undermining any sense of urgency. Apparently, the president represents a serious enough threat to the republic that he must be removed, but he’s not serious enough a threat to get the House of Representatives to work on weekends.
Check the calendar, everybody: The middle of next week would be January 12 to 14, and the Senate would still need time to hold a trial. Would there be a point to removing Trump in the final days of his term? He would still be blocked from running again, and perhaps there is enough of a consensus that barring Trump from returning to the White House would be worthwhile.
Removing Trump in a week or so would establish a Mike Pence presidency that would make William Henry Harrison look like FDR. (I’d volunteer to write the paragraph on the Pence presidency in the history books. President Pence took the oath of office, greeted everyone, went to bed, and the next morning he attended the inauguration of the 47th President, Joe Biden. Pence’s 17-hour presidency was widely regarded as a quiet and scandal-free era, as most of the country slept through at least half of it.)