President Donald Trump preparing to leave Georgia on Jan. 4, 2021. Photo by Tia Dufour, courtesy The White House.
Eight of the 44 presidents who preceded Donald Trump died in office (four violently, the others of natural causes); one resigned in disgrace. Three presidents – including Trump – have been impeached but survived trial in the Senate to remain in power.
A constitutional government anticipates that sometimes a president cannot serve a full term and that, on rare occasions, a president should not continue to serve. We may be on the brink of activating constitutional machinery that was created (among other reasons) for just the hard-to-imagine circumstances in which we find ourselves.
The chances are increasing that Trump will be sidelined just days before he would have surrendered the White House to his elected successor anyway. Although a second impeachment is on the table, the more expedient vehicle would be to elevate Vice President Mike Pence to the status of acting president by operation of the 25th Amendment.
Pence himself must pull the trigger on this, a step the self-effacing veep is understandably loath to take. No president has ever been removed from office by operation of the 25th Amendment since it was enacted in the 1960s, although several have relinquished power, voluntarily and temporarily, while undergoing medical treatment.
Pence, with the concurrence of a majority of the Cabinet, would need to declare that Trump is “unable to discharge the powers and duties of his office.” Since Trump is self-evidently in adequate physical health, Pence and the government’s senior officials would have to concur that Trump has, essentially, lost control of his faculties.
That’s a dire conclusion to reach about an individual who attracted the votes of more than 70 million American citizens scarcely two months ago. But Trump has seemingly been unable to process the fact that those votes were not enough to earn him a second term. He unleashed a mob to try to deter Congress from implementing the voters’ judgment. When that mob violently attacked the Capitol, he refrained from criticizing either the riot or the rioters, although under immense pressure he grudgingly issued a recorded speech advising them to go home. The riot left five dead, including a Capitol Police officer who died Thursday night from injuries he sustained the day before.
Trump continued to deny his defeat yesterday even in a predawn pledge to transfer power peacefully, once Congress completed the task of affirming Joe Biden’s victory. The New York Times reported he has previously suggested to aides that he might try to pardon himself before he leaves office. The president’s plainly delusional thinking, coupled with his evident lack of commitment to the constitutional processes of American government, provide Pence and the administration’s senior officers ample justification to remove Trump from power. Until and unless they do, Trump will remain the commander in chief of America's armed forces. He will constantly be accompanied by the duty officer who carries the launch codes for our nation’s nuclear arsenal until the moment Joe Biden completes the oath of office to succeed him.
Trump himself is making the case that this situation is untenable.
The president’s support within the government, and particularly within Congress, was in free fall yesterday. Democrats, of course, have long considered him unfit for office; that is why they unsuccessfully impeached him. Many, including House Speaker Nancy Pelosi and Senate Minority (soon to be Majority) Leader Chuck Schumer, renewed demands this week for Trump’s immediate removal. Some Republicans demurred, but others have begun to speak publicly in support. Rep. Adam Kinzinger of Illinois issued a statement on Thursday calling on the vice president and the Cabinet to invoke the 25th Amendment. It is a safe bet that more Republicans are expressing such support privately.
Perhaps the best indication of that was a report in The Hill that congressional Republicans are urging senior administration officials to stay in their posts rather than quit in protest of Trump’s behavior. Transportation Secretary Elaine Chao resigned yesterday, removing one potential vote in the Cabinet for Trump’s suspension from power. Chao has extenuating circumstances: Her husband is Mitch McConnell, the Senate Majority Leader who had to be hustled to safety when Trump’s mob was forcing its way into the chamber.
By late afternoon yesterday, there was no sign that Pence was preparing to act. He may think Trump’s removal would merely inflame the national passions and could trigger more unrest. It’s a questionable point, but not an unreasonable position.
Invoking the 25th Amendment would run out the clock on Trump’s term. It would immediately put Pence in charge. Trump might promptly declare himself fit to serve, but Pence and senior leaders could keep him away for four days before notifying Congress of their determination that he is unable to continue. Congress, which is not in session, would then have 48 hours to call itself back. After that, it would have 21 days to determine by two-thirds vote of each house whether to permanently remove Trump from office. But by that time, Trump will have been replaced anyway.
The nation would get its constitutional due: the sight of an outgoing president standing by as the next president takes the oath of office. That outgoing president would be Pence, not Trump. Can you picture Trump standing with presidential calm on that podium if he remains in office on January 20? After this week, I can’t.
Presidents come and presidents go, not necessarily of their own volition. The republic endures. So it has been since John Adams followed George Washington, and so it will be 12 days from now. The final unique characteristic of a unique presidency may arrive in the way it ends.