Since an unsustainable situation won’t go on forever, it seems that something will have to put an end to the Trump (mal)Administration. But what?
He could be removed from office by impeachment and conviction, and that’s obviously the right course of action. But – for the moment – it’s equally obviously infeasible politically.
He could also – once Mueller has done his job – be indicted for and convicted of a variety of crimes, but there’s some doubt as to whether a sitting President can be indicted. (I think he can, since the Constitution does not protect him as it protects Members of Congress, but there’s no precedent and therefore no authoritative statement of the law.)
On the other hand, he could clearly be indicted for state crimes by state prosecutors, and the New York AG might have the nerve to do it and the skill to obtain a conviction. That little-discussed option might be the actual outcome, but it’s not on the horizon right now.
Short version: If the Vice President and eight of the fifteen Cabinet officers determine that the President is “unable to discharge the powers and duties of his office,” they send a notice of that finding to the Speaker and the President Pro Tem, and the Veep immediately assumes those “powers and duties.” But not permanently; the Veep is only the “Acting President.” When and if the President decides he’s not incapacitated, he sends a note saying so to the Speaker and the President Pro Tem, and reassumes his powers, unless the VP and the cabinet majority challenge that claim. In case of a challenge, Congress decides: unless within 21 days two-thirds majorities in the House and Senate vote that the President is still out of it, he takes back his powers.
All that is ugly enough – after all, Donald Trump is no more “unable” to be President now than he was the day he was elected, and 25A was not designed as a check on the folly of the voters, and the possibility of a pre-emptive purge of the Cabinet to prevent such a coup would be comical if only it were happening in someone else’s country – but you could still see how it could provide a way out. Better yet, the threat to invoke 25A (coupled with the promise of a pardon?) could be used to force Trump to resign, though again once the threat was made he could frustrate that plan simply by bouncing a sufficient number of cabinet officers and appointing his relatives to replace them.
But there’s a problem. Even Trump did not object, or if he tried to reclaim his powers and two-thirds of each House of Congress decided he was still ga-ga, the result would not be to remove the President from office the way conviction on impeachment removes him from office. All that means is that the VP hangs on as Acting President, executing the powers and duties of the Presidency until the President gets his mojo back. Nothing I can see would prevent an involuntarily displaced President from invoking the re-assumption process anew, forcing a new set of Congressional votes, every time his attempt to reclaim power was rejected. Can’t you imagine an enraged Trump doing just that? Or, rather, can you imagine Trump not doing just that? As far as I can tell, he never hesitates between getting mad and getting even: he always does both. Not only would that be a disaster for the Republic, it would be a catastrophe for the Republicans.
“Well,” I hear you say, “So much the better. Couldn’t happen to a nicer bunch.”
Well, yes. But now it is time for a little game theory. If the 25A route isn’t good for Republicans, then they won’t go down that path. Worse, if it’s obviously not good for them, they can’t even effectively threaten to go down that path to force a resignation, because the threat wouldn’t be credible.
So I have no idea what’s going to happen. Trump could resign. He could be impeached and convicted on impeachment. He could be indicted and convicted either in federal court or in a state court. A chariot of fire could take him up in a whirlwind to Heaven. Satan might come to collect his soul under the terms of their old contract. He might – who knows? – even serve out his term. But – short of something like a stroke leaving him with aphasia – I don’t think he’s going out under 25A.
Footnote The results of the Montana and Georgia special elections (and even the long-shot in South Carolina) will shift the odds on Trump’s serving out his term.
Responses to comments Nice to see RBC commenters hard at work, reminding us of what a comment section was like before “comment section” took on its current meaning. Two substantive points worth addressing:
- Yes, it would be fine to get the right wing (and Trump himself) suspicious that Pence is one of the anti-Trump leakers. The scary part is that it might be true.
- As to whether Trump could replace the cabinet to prevent being booted: If I read the text correctly – and of course none of this has been tested in court – a cabinet officer doesn’t have to be confirmed to count among “the principal officers of the executive department.” Sally Yates as Acting Attorney General, for example, had all the powers of a Senatorially confirmed AG. So I believe – subject to correction from those more learned than I – that Trump could fire Mattis tomorrow and immediately appoint Ivanka as Acting Secretary of Defense.