It is 11 a.m. on January 20, 2021. Joe Biden and Kamala Harris are preparing to take their oaths of office on the steps of the U.S. Capitol. Red, white, and blue bunting papers over the wounds of the assault on Congress just two weeks before. There is talk of courtesy and reconciliation, bipartisanship, and common purpose. COVID-19 restrictions have limited the assembled crowd, but the key officials of the federal government are all there too—with one notable exception.
As the ceremony begins, a murmur goes through the crowd. An armed mob in MAGA-regalia has assembled in Virginia and is swarming across the Potomac bridges. Flimsy DC police barricades are tossed aside, and the few riot police on duty lay down their shields to take selfies with the insurgents. As the first shots ring out, frantic calls go forth from the mobile phones of the Vice President, the Chief Justice, and the Speaker of the House to the White House switchboard. “Will the President,” they ask, “please provide some security for the Inauguration?”
After January 6, 2021, can anyone doubt that this is a plausible scenario? Do we need to speculate on what President Trump’s answer to such pleas for assistance would be, as he contemplates the waning moments of his executive powers? Should we take a chance that he has somehow “learned a lesson” from the failure of his recent coup attempt? Should we wager the lives of our present and future leaders, along with the survival of our Republic, on the better angels of Donald J. Trump’s nature?
These questions are not difficult to answer. The situation speaks for itself. The harder question is, what can be done about it?
Three Ways to Defuse the Trump Bomb
There are three ways to address the threat posed by Donald Trump to the transfer of power on Jan. 20: (1) his removal from office through impeachment, (2) temporary suspension of his powers pursuant to the 25th Amendment, or (3) neutralization of his powers by informal (and extra-legal) means.
After lying dormant throughout the election campaign, the first two of these options were quickly revived as soon as the January 6 attack on the Capitol was suppressed. The third option was not openly discussed, but was implemented in practice, at least in one crucial instance. When President Trump reportedly balked at authorizing the deployment of National Guard troops to retake the Capitol from his violent supporters, Vice President Mike Pence took this crucial step on his own responsibility. Where he found the constitutional authority to do so is unclear. But the action may have prevented the electoral vote count from being delayed for days rather than hours, with all the additional damage that might have entailed.
For the remaining Trump loyalists and apologists, the quiet curtailment of the President’s ability to do harm is probably the best-case scenario. With Trump’s access to social media temporarily restricted, and an acknowledgment of the coming transfer of power grudgingly extracted from him, they will claim that all is well. Perhaps he can be calmed. Perhaps he can be distracted. If he tries to do wrong, maybe wiser advisors can dissuade him or, failing that, ignore his orders. If a truly dangerous situation arises, they can pretend that Mike Pence is really in charge.
This may strike some as an easy solution, but it is cowardly, inadequate, and not very constitutional. It is the same approach taken by the Republican Party throughout the entire four years of Trump’s presidency, with catastrophic results. While Trump can surely be deflected or delayed on minor matters, he has shown he will strain every available muscle to maintain his grip on power. And the time does come—January 6 was an example—when a President of the United States indifferent to his constitutional oath could take down the entire Republic.
Out of His Mind, But Still in His Office
While Trump’s mob was still roaming the halls of Congress, rumors about the President’s mental health began to pour out of the White House. CNN’s Jim Acosta reported a conversation with “a GOP source close to the president” who told him “the president is so traumatized by his loss in the election it is all he can talk about, it is all he can think about, it’s all-consuming for him. And in this source’s opinion he is out of his mind.” Acosta further reported the next day that Trump is “unstable, ranting and raving” and “bent on destruction in his final days.” The image of a president progressively unhinged by defeat is consistent with long-standing characterological traits as well as his behavior since the election. Calls to remove Trump from power through the 25th Amendment began to circulate not just among opponents who have long doubted his sanity, but right in the heart of the Republican Party.
The 25th Amendment contains a variety of provisions dealing with executive vacancies and disabilities, which I’ve previously discussed at length here. But the key provision is Section 4, which allows the Vice President and a majority of “the principal officers of the executive departments” (i.e., the cabinet) to declare that the President is “unable to discharge the powers and duties of his office.” In that case, the Vice President temporarily assumes those powers and duties as “Acting President.” But if the President recovers—or disputes the existence of a disability at all—he can attempt to reclaim his office by informing Congress. Unless the Vice President and a majority of the cabinet respond with a further declaration to Congress within four days that the President remains disabled, the President automatically regains his powers.
If the matter remains disputed, Congress must convene and decide the issue within 21 days. Ordinarily, the deck is stacked in favor of the President: he will regain his powers unless the House and the Senate each confirm his disability by two-thirds majorities. That the President can so easily be restored to power would ordinarily discourage the Vice President from invoking the 25th Amendment against the President’s express will.
So, could Mike Pence and the cabinet realistically remove Trump from power through Section 4? Even now, President Trump likely retains the support of at least one-third of the House, judging by the votes to reject electoral votes against him even after the invasion of the Capitol. But a quick look at the calendar shows that the President has lost much of his advantage to contest disability under Section 4. Once the Vice President and the Cabinet declare Trump disabled, even if he immediately contests this determination, they have 4 days to respond. Congress could then investigate and debate his disability for up to 21 more days before voting. Since President Trump has less than a fortnight remaining in office, the congressional leadership could easily run out the clock once Section 4 is invoked. Accordingly, suspension of Trump’s powers through the 25th Amendment is a realistic possibility.
Conscience and Cowardice
Realistic, that is, except insofar as it relies on decisive action by Vice President Pence and the cabinet. Throughout Trump’s term, Pence has been an obsequious loyalist, often at the expense of his own dignity. Recent events—especially Pence’s refusal to walk a constitutional plank for Trump by disputing the electoral vote count—have put a strain on their relationship. But there is every reason to believe that Pence would prefer to avoid an open break with Trump or his supporters, who would be vital in any political future that may remain to him. The prospect of a handful of days as Acting President is unlikely to tempt Pence to grab for power for its own sake.
The cabinet is a similarly unlikely source of decisive action. Any figures with the slightest independence were driven out of the cabinet long ago. More recently, even loyalists like Attorney General Bill Barr have been forced out for failure to gratify the President’s increasingly frantic whims. Several cabinet positions are occupied by “acting” officials who have not been properly confirmed to their jobs, perhaps casting doubt on their ability to act under the 25th Amendment, while at least two more cabinet officers have abruptly resigned in the wake of the Capitol attack. And even if there has been a sudden collapse in Trump’s mental fitness, most members of the cabinet do not meet with him regularly and would have no first-hand knowledge of it. It may be one thing for a detached observer to conclude that the President is not mentally capable of performing his duties, but quite another for long-time supporters who actively supported his re-election efforts.
There would certainly be advantages to using the 25th Amendment to sideline Trump. In comparison with impeachment, the 25th Amendment could be invoked in an afternoon, simply by collecting signatures and delivering a letter to the leaders of Congress. That makes it well-suited to an emergency like the present one. Also, if Trump is declared disabled, Pence would become Acting President—rather than the 46th President, a title which he certainly does not deserve to carry for life.
But the sad truth remains that Pence will have neither the conviction nor the courage to act. Without him, the 25th Amendment simply cannot be invoked. Despite showing some belated fortitude in the electoral vote count, Pence will likely take the easy way out, hoping to mitigate further abuses of power by Trump before January 20 without burning his bridges to the MAGA Nation. And most of the dwindling cabinet—having experienced no direct personal threat during the events of January 6—can also be expected to duck responsibility for the fate of the nation over the next two weeks.
So, Here We Go Again
That likely outcome leaves impeachment as the only tool left to safeguard the transition of power and the survival of the Republic. Just as importantly, it is the proper tool, the one intended by the Framers of the Constitution for precisely this purpose.
In previous columns, I have discussed how the impeachment clauses of the Constitution are designed to work; the ongoing debate over what constitutes an impeachable offense; and the events that led to Trump’s 2019-20 impeachment, trial, and acquittal in the Ukraine affair. While there is plenty of controversy over what precisely constitutes a “high crime or misdemeanor” requiring removal of a President under Art. II, Sec. 4 of Constitution, the events of January 6, 2021, present no such difficulties. President Trump promoted, incited, and condoned a violent attack on Congress as it tried to carry out its constitutional duty to confirm the presidential election results. It was an abuse of power designed to violently seize and retain power. It was a direct attack on the independence of a co-equal branch of government. To paraphrase Abraham Lincoln, if that is not impeachable conduct, then nothing is impeachable.
Moreover, impeachment is a congressional power. It is the right way for Congress to defend itself as well as the Constitution. By contrast, the 25th Amendment is designed to protect and preserve the executive power from the disruptions of vacancy and disability. There is something pathetic about members of Congress asking the Vice President and Cabinet to invoke the 25th Amendment, when Congress already holds an equivalent or stronger power in its own hands. Even when phrased more like an ultimatum, such calls are no substitute for Congress protecting the sanctity of its own halls through impeachment of the president.
So, let us grant that impeachment is the right thing to do. But is it possible? There are two potential problems, and they are big ones: time and votes.
World Enough and Time
Impeachment is usually an extended, multi-stage process. All our prior examples of presidential impeachments have taken months or even years to resolve. Investigations, fact-finding committee hearings, the drafting of articles of impeachment, and days of floor debate are the norm, just to get an impeachment through the House of Representatives—not to mention a trial in the Senate. For example, from the first revelations of the Ukraine scandal to the passage of articles of impeachment by the House took five months (August-December 2019). The Senate trial was notably truncated by the majority’s decision not to call witnesses, but still lasted 20 days (January-February 2020).
Given these timeframes, it might seem impossible to remove Donald Trump from the presidency through impeachment in the few days remaining before January 20, 2021.
But the processes typically followed by the House and Senate in impeachments are simply rules set by themselves. The Constitution provides that the House and Senate each “may determine the Rules of its Proceedings.” With respect to impeachment, the only procedural rules set by the Constitution are that the Chief Justice must preside over the trial of the President, and two-thirds of the senators present must vote to convict. Unlike a criminal trial, the liberty of the accused is not at stake—only his continued ability to serve in public office. Due process rights do not apply, and the decisions of Congress on impeachment are not reviewable by the courts.
In other words, each house of Congress could revise its rules of procedure to allow for an expedited impeachment process in a case of extreme urgency—like the present one. And there is a precedent for expedited impeachment—one provided by the Founding Generation itself. In 1797, just ten years after the Constitutional Convention, Senator William Blount of Tennessee was found to have formed a conspiracy to help seize the Spanish territories of Louisiana and Florida … for Britain. Within a single day after an incriminating letter from Blount was discovered and read to the Senate, the House of Representatives was so outraged that it voted immediately to impeach Blount, the very first time it exercised that power. The Senate expelled Blount from its membership the next day (though it took its time to conduct an impeachment trial, ultimately concluding that members of Congress were subject to internal discipline but not impeachment.)
So, a rapid impeachment in visceral response to outrageous, disloyal behavior is by no means inconsistent with the original understanding of the Constitution. No doubt there would be much caterwauling about unfairness from Trump’s remaining defenders. And, in truth, fast-track impeachments should not become the norm. In most cases there is much evidence to sift—and many weighty arguments to be heard. But when a threat to the Constitution is imminent, the state must have means of self-defense sufficient to meet the danger. Each senator and representative takes an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” The time has come to do just that, and the job can and must be done in the time available.
Failure to act, on the other hand, would leave the door open to a future of political violence and mob rule. As Cicero told the Roman Senate when a reckless demagogue threatened to overthrow the state in 63 B.C., “This Republic has no lack of counsel and authority. It is we alone—I say it openly—who are not doing our duty.”
So Long, Farewell, Auf Wiedersehen, Goodbye!
Assuming that an impeachment can somehow be moved through Congress in time, will it make any difference? The House needs only a simple majority to approve articles of impeachment, so this step is well within the power of the Democratic majority. Of course, an impeachment on purely partisan lines would risk replaying the frustrations of the Ukraine drama, where the Democrats methodically presented what seemed to them an airtight case—but that attracted zero Republican votes in the House and only one in the Senate. But this time there is reason to believe that more GOP votes could be winnable in the Senate. Unlike their counterparts in the House, Republican senators voted overwhelmingly to affirm the Electoral College result in the wake of the attack on Congress. At the very least, they experienced the dangers of unrestrained Trumpism in a direct and personal way on January 6.
The key will be the attitude of GOP Senate Leader Mitch McConnell. For most of his career, McConnell has been a wily political operator, straining the rules for partisan advantage, rather than the careful institutional guardian of the Senate he presented himself as on January 6. No matter. On that day he showed he can keep most of his troops in line, even when defying Trump. If, for whatever reason, McConnell has finally had enough of the President, that would give his caucus enough cover to provide the 17-20 GOP votes that would be needed to convict and oust him from office. It may be a low-percentage bet, but the odds are still better to find a shifting calculation in McConnell’s mind than to find the heart of a lion in the cowardly Pence.
And what might that calculation be? McConnell knows that the GOP must somehow move on from Trump. An impeachment would be an ugly way for their romance to end, but at least it would be definitive. As an added bonus, if Trump is convicted, the Senate would then take an additional vote (by a simple majority) on whether or not to bar him from any future federal office. That step would remove any possibility of a reprise candidacy from Donald Trump (at least the senior version) in 2024, a development that might be secretly welcomed by other aspirants for the GOP nomination.
Even if the Senate cannot complete a trial by January 20, or fails to convict, there remain several possible benefits from a quick impeachment by the House. A pending impeachment process might provide some marginal, temporary deterrent against further subversion of the Constitution—perhaps enough to get us through January 20. It might also impede Trump’s further abuse of the pardon power, which explicitly does not apply “in Cases of Impeachment” per Art. II, Sec. 2 of the Constitution.
It would also mark Donald J. Trump as the first (and hopefully last) U.S. president to have been impeached twice, and as the only one who ever directed a violent attack on the system of government he was sworn to protect.