Impeachment and the 25th Amendment Won’t Work, But There Is Something That Will

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In the wake of the attempted coup at the United States Capitol building this week, calls for impeachment or for invoking the 25th Amendment have erupted like a geyser. Speaking for the minority, I have argued that these are not realistic ambitions. But there is a way forward, one which is not getting nearly enough attention, but which stands a better than even chance of success.

Neither impeachment nor the 25th Amendment are realistic. Both ultimately depend on a 2/3 vote in the Senate. Impeachment requires that for conviction of a president and removal from office. The 25th does not have that requirement initially, but if the president challenges the claim that he or she is unable to perform the duties of their office, then both houses of Congress must vote to remove them by a 2/3 vote. It’s far from certain that even the House, with a razor-thin Democratic majority, could do that, let alone the Senate.

Bear in mind that, while the new House of Representatives has been sworn in, the new Senate only comes in with the new President and Vice President, so it is the same group that refused to remove Trump the first time he was impeached. Last time, only one Republican, Mitt Romney, voted to remove Trump. There will be more this time, but would there be twenty, which is the number Democrats will need? That is extremely unlikely.

More than that, keep in mind that Mitch McConnell is still Senate Majority Leader, and will remain so until January 20. He may or may not support Trump’s removal, but he has other priorities. He wishes to remain the leader of Senate Republicans. That is unlikely to happen if he allows a vote on Trump’s removal, a vote which will, inevitably, split the party in a way no political party in American history has ever been split. All he must do to avoid that is to delay a vote on removing Trump for a little over a week. The idea that he would not do so is as absurd as the idea of McConnell supporting Medicare for All and the Green New Deal.

McConnell’s obstruction is a given and is a guarantee of failure for both impeachment and the 25th Amendment. In the case of the latter, it won’t even get to that point, because the amount of courage (not just political courage, but literal courage in the face of risk to life and limb) it would demand of Mike Pence and at least seven of Trump’s remaining Cabinet members is far more than they have. It’s already clear Pence has no intention of initiating the process of the 25th.

Some have suggested that if the House impeaches and the Senate doesn’t vote on conviction until after Trump leaves office, this could, at least, bar him from future runs for office and potentially deprive him of other post-presidential benefits, such as lifetime Secret Service protection and a pension.

But that is a long shot at best. For one thing, no one has ever tried to impeach and remove a president that is no longer in office. The question of whether Congress can do that is an open one, and would probably have to be decided by the Supreme Court. This Court seems likely to want to restrain Congress’ power in such a matter.

But before that point, the Senate would still need to convict Trump via a 2/3 majority. Democrats have 50 seats in the new Senate, but that is still a long way form 2/3 and getting 17 Republicans to vote along with them, knowing that it will certainly lead Trump supporters to work hard to primary them, is still a 100-to-1 long shot.

So does that mean there is nothing to do? Not at all.

For one thing, it’s fine for the House to impeach Trump again if they want. It will accomplish nothing, but it will make Trump the only president to be impeached twice. As I have been contending, however, while the 25th Amendment is a non-starter, the better option is prosecution.

The incoming Biden administration should be preparing, right now, to prosecute Donald Trump for all his transgressions in office, all the graft, all the self-dealing, all the violations of the emoluments clause, all the corruption. But the top priority must be to prosecute him for his role in the insurrection this week.

The reason that is most important is not the public outrage it has caused. It is not the fact that even many Republicans find his actions reprehensible, so it’s one area there can be more unity than usual.

No, the biggest reason to prosecute Trump for this is that it will prevent him from ever holding any position in the United States government again.

It is not the 25th Amendment to the Constitution that is important here, it is the 14th. Section 3 of the 14th Amendment reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

It’s crystal clear: Trump cannot ever run for office again if he’s convicted, and the chances of getting a 2/3 vote of both Houses of Congress to change that are virtually nil. One of the biggest arguments for impeaching or using the 25th Amendment to remove Trump is that he would be prevented from running again. If the goal is to ensure Trump can’t run again, the 14th Amendment does that.

More importantly, Trump has never feared either the 25th or impeachment. But he has always been terrified of prosecution; that’s why was talking about a self-pardon just a couple of years into his term. He understands, if he is found criminally liable, not only could he go to jail, but his family will be ruined.

Prosecution would hurt him far more than impeachment or removal by the 25th. More importantly, it is a deterrent that is designed to be enforced, rather than a method specifically created to be used only in the most desperate circumstances, a bar so high that it has rendered the tools ineffective.

Both impeachment and the 25th Amendment depend on the willingness of the president’s own party and allies to acknowledge that she or he is so corrupt or such a danger to the country that they must be removed. The system worked one time, with Richard Nixon, where his allies convinced him to resign before impeachment because Republicans were not going to support him.

But the three presidents that have been impeached have not been removed from office. In the cases of both Andrew Johnson and Bill Clinton, the argument can be made that both impeachments were so fundamentally motivated by politics rather than the common good that the high bar for removal properly prevented such an action (much more so in Clinton’s case than Johnson’s).

But Trump’s impeachment, where it was proven that he tried to extort electoral help from a foreign power in exchange for key foreign policy agreements including significant weapons sales, was as clear cut as any impeachment case could be, yet it still was a failure before it even began. The 25th is even more inconceivable. It’s never been used, or even seriously considered before now, to remove a president against his will (it has been voluntarily invoked by Ronald Reagan and George W. Bush to empower their respective vice presidents when they were going to be physically incapacitated for a short time, and it has been used to replace vice presidents — Spiro Agnew and Gerald Ford — who have left their office, but never to remove them).

These facts make prosecution for crimes committed while in office even more imperative. Trump has demonstrated that impeachment and the 25th Amendment are not effective deterrents. Prosecution, which can happen even without the support of the president’s party, can be.

Indeed, it must be a deterrent. Trump is an incompetent person and has been a failure at everything he has ever done. His motivations for his attempt at autocracy were entirely selfish, not based on any ideology at all.

Those facts are what differentiate Trump from other authoritarians. He has no ideology, no notion that the world or the country would be a better place under his dominance. He simply wants to increase his power, his wealth, and his likes on social media. Effective authoritarians have grander visions, no matter how much personal ambition they have.

The next person, and there will be a next one, who wants to follow Trump’s general blueprint, will fix his mistakes. They will not be so stupid. They will genuinely believe they are making America great, no less than Hitler in Germany, Mussolini in Italy, or Stalin in the USSR. They will have a unifying vision for their cult, and they will be much more effective.

Those are the people who must be deterred. And only prosecuting Trump is going to deter them. The nice bonus is that prosecution will also prevent Trump from ever holding public office, by election or appointment, ever again. It’s the only way to make that happen.

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