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‘Resistance’ to Trump and the 25th Amendment: impeachment by insiders?

And if President Trump is removed from office? Meet President Pence. Mandel Ngan/AFP

The anonymous op-ed piece published September 5 in the New York Times, “I am part of the resistance inside the Trump administration”, offered the “cold comfort” that there are “adults in the room” restraining President Trump from his worst “inclinations”. Those working in the White House who do not fully support Trump have the option of resigning and publicly signing their denunciation. But they stay, remaining loyal to an agenda of tax cuts, deregulation and a strengthened military that, “despite the president’s leadership style”, they feel they can move forward.

Ordinary US citizens or members of the military can wonder about the strength provided by a White House where the commander in chief is being secretly outmaneuvered by his staff. They can also judge the merit of cutting the taxes of the rich while gutting the EPA and other regulatory agencies. The author gives the impression that this situation might be tolerable until 2025, the end of a potential second Trump mandate.

If those who are part of the “resistence” inside the White House won’t resign, there are two Constitutional ways of removing a president. Indeed, these officials swore to uphold the Constitution before they swore to restrain Trump, so why don’t they use impeachment or the 25th Amendment to do the job in an open, legal way?

The 25th Amendment: tool of insiders

The anonymous letter of September 5 specifically mentions the 25th Amendment of the US Constitution. Section 4 of the amendment states that members of the Cabinet can turn power over to the vice president with a majority vote. Clearly, this would be the tool for White House insiders who wish to retain power for the Republican party. The authors dismiss this method, stating that there is no precedent for using Section 4 and if used it would certainly end in a “constitutional crisis”. But what does the admission of this White House plot mean for the future of this government?

As early as February 2017, journalists and pundits discussed Trump’s fitness for office in legal and procedural terms. David Brooks of the New York Times thought Trump wouldn’t even last a single term and Steve Benen of MSNBC looked into the history of the 25th Amendment. That was in the first month of the Trump administration. Now that people inside the White house are discussing the 25th Amendment, how much we closer are we to Trump’s being removed from office?

The 25th Amendment in history

The first purpose of the Amendment, ratified in 1967, was to clear up ambiguities in the Constitution about the transfer of power to the vice president because of the president’s death, inability to serve or resignation (Article II, Section 6). The first three sections deal with procedures and titles. But Section 4 of the amendment adds new ambiguities to a situation that the original framers of the Constitution did not imagine.

Section 1: Clarifies the title of the vice president as he takes charge. When John Tyler took over from the dead president William Henry Harrison in 1841, he insisted on the title “president”, and so has every promoted vice president since. Section 1 of the 25th Amendment gave this practice Constitutional standing.

Section 2: Describes how to appoint a new vice president when the vice president has moved up, something not mentioned in the original Constitution and that had left the position vacant a number of times.

Section 3: Elucidates transferring power when the president is alive and present but incapacitated, a problem introduced by Woodrow Wilson’s stroke in 1919. For many months, Mrs. Wilson shunted in and out of the president’s darkened bedroom interpreting his words for members of the government. She and his doctor obscured how ill Wilson was and Congress failed to addressed the problem after he died. During Dwight Eisenhower’s mandate, his medical conditions required him and Vice President Richard Nixon to sign agreements turning power over to Nixon until Eisenhower returned to his duties. The arrangement reassured the public but wasn’t sanctioned by the Constitution. John Kennedy’s assassination, which gave no time for special agreements, underlined the problem. The 25th Amendment, adopted during the Johnson administration, was the solution to all of these problems.

Section 4: It provides for the promotion of a vice president to the office of president without the consent of the elected president and without his death or resignation. Because it was imagined for a case such as Kennedy’s assassination, where an unconscious president might recover, it allows a president to reclaim his office when he considers himself fit. Hence the certainty of a power struggle should Section 4 be used to dispose of a president who is conscious, active and unwilling to leave office. Needless to say, it has yet to used.

During President Dwight Eisenhower’s mandate, he and Vice President Richard Nixon signed agreements turning power over to Nixon until Eisenhower returned to his duties. Nixon Foundation

The past uses of the 25th Amendment

The 25th Amendment has come into play six times since Watergate.

Section 2 allowed Richard Nixon to name Gerald Ford to the post of vice president when Spiro Agnew resigned from the post amid a raft of corruption charges. Ford was confirmed by Congress at the end of 1973. When Richard Nixon was forced to resign the presidency in 1974, Ford became president and not acting president with the blessing of Section 1, though he had been named to the post by the man who had just left under a cloud and still lived. Ford pardoned Nixon and named Nelson Rockefeller to be vice president under Section 2, the third time the 25th Amendment was used.

Section 3 was first evoked in the letter written by Ronald Reagan in 1985 when he made his vice president, George H.W. Bush, acting president while he underwent surgery. In 2002 and again in 2007, George W. Bush more formally used Section 3 to name Dick Cheney as acting president during medical examinations involving anaesthesia. In both those cases, the acting presidency lasted no more than a couple of hours.

The thorny issue of Section 4

According to Section 4, the vice president and a “majority of the principle officers of executive departments”, usually called the Cabinet, can vote to send a declaration to the House of Representatives and the Senate saying that the president is not fit to serve. At that moment, the vice president becomes the acting president. However, the president can write his own declaration at any time stating that there is no impediment to his holding office and resume his duties at once. If it were a matter of a president regaining consciousness after an accident or sudden illness, this would make perfect sense, putting the elected president in charge of this transfer.

Section 4, however, allows a determined Cabinet and vice president to question the president’s decision and send another declaration of presidential unfitness to serve within four days of the president’s. At that point, both houses of Congress have 21 days to deliver a two-thirds majority confirming the president’s unfitness and thus the vice president’s ascension. Congress has an extra two days for this if it is not in session.

The not-so-mysterious anonymous letter

The possibility of vice presidential, Cabinet and staff disloyalty was probably only conceived of by the framers of the amendment as a political struggle. Hence the sensible, if sly, mention and dismissal of the 25th Amendment in the anonymous New York Times op-ed. They hold up the spectre of the chaos that could result from Section 4 being used to show that they are numerous enough, possibly a majority of the Cabinet, to do so if they wished.

The author backs away from that possibility because it would throw the question into the House and Senate, where two-thirds majorities would have to include Democrats. This would be Impeachment without the trial. It is conceivable that the Democrats might wish to remove Trump by Impeachment, but they certainly would not do so in favour of an unelected Republican cabal of Trump appointees. They would want the trial and exposure of Impeachment discrediting Republicans. Given Trump’s behaviour up to now, he would certainly not be passive in all this.

Bypassing impeachment to keep the upper hand within a majority under threat

Section 4 of the 25th Amendment is not a serious possibility in the present case. The person or group in the White House who conceived of the letter to The New York Times is trying out something else, unprecedented. Convinced that the Republican Party has been weakened by Trump and that this weakness will become manifest in the November election, they are asking their base and their financial supporters to maintain them in power.

To be effective, they need continued support by majorities in the House of Representative and the Senate. These Republicans have done their arithmetic and made their calculations. The House of Representatives, which traditionally shifts away from the president’s party at mid-term elections, will almost certainly give a majority to the Democrats in November. In January, when those new Representatives take their seats, the pressure and temptation to vote on the some version of the Articles of Impeachment – including those filed in late 2017 – will be overwhelming.

Those articles will be based on charges of Trump’s receiving emoluments from foreign powers (Article I, Section 9, Clause 8 of the Constitution), which will be persuasive given his extensive international real estate empire. There will be charges about communications between Trump’s campaign and foreign powers to influence public opinion and subvert the election of 2016 based on the growing information from the Mueller investigation. Buy now the Mueller investigation has convinced many that Trump is at least an “unindicted co-conspirator” in connection to some charges. That is what Richard Nixon was called when Republican senators started to desert him.

Thanks to the 25th Amendment, Vice President Gerald Ford became president in 1974 when Richard Nixon resigned. He later pardoned Nixon and named Nelson Rockefeller to be vice president, also under the 25th Amendment. Wikimedia, CC BY

Impeachment: a political tool of outsiders

What the letter’s anonymous author or authors cannot do is to use impeachment to remove Trump, because it is the tool of the party opposed to the president. It has been used several times and in the case of Richard Nixon, the House Judiciary Committee’s voting for Impeachment Articles led to the president’s resignation. But the Democrats were in control of the House of Representatives and thus leading the charge against Republican Richard Nixon. In the case of Bill Clinton, a Republican House of Representatives with a Republican-dominated Judiciary Committee voted for Impeachment Articles and actually sent them to the Senate for trial.

Why did Nixon resign while Clinton stood trial in the Senate? The legal qualities of the cases against the two presidents were important, but far more important was relative party strength in the two houses. The Impeachment Articles voted against Nixon passed after years of Watergate scandal, lost court cases and other battles – Republicans were abandoning Nixon, and joined Democrats in the committee vote. When he resigned, Nixon knew that the same thing would happen when the House voted. After the “smoking gun tape” – where Nixon and staff discuss the cover-up days after the Watergate burglary – was released on June 23, 1972, just days before his resignation, he could count on only 15 Republican votes for acquittal. He needed 34.

This letter to the New York Times indicates that some in the White House don’t believe that Republican senators, in the majority at present, will necessarily stay loyal to Trump in an Impeachment proceeding. Meanwhile, in the midterm elections, where only one third of Senators are up for election, and where by chance, many Republican seats are among the safe two-thirds and many Democratic seats are being challenged, several upsets are expected: a Democrat may win in West Virginia where Trump won by 40%, and another may win in Texas where Trump won by 9%. This will not be enough to give the Democrats in the Senate, where an impeachment proceeding takes place, a two-thirds majority necessary for conviction unless some Republicans join them.

When the letter’s authors state that “like-minded colleagues [who] have vowed to thwart parts of [Trump’s] agenda and his worst inclinations”, they can’t just be appealing to the Trump base, which still supports him. They can’t just be appealing to the super-rich Trump supporters who benefit most from the tax cuts and deregulation of banking and environmental measures and the rest because at this point, they can’t ensure a majority in the House.

The author or authors write knowing that some shake-up will come, but with the assurance that whether Trump is impeached and convicted, impeached and just embarrassed for a while or sidelined some other way, they will remain in the White House, defending the Republican agenda. Impeachment with an unlikely conviction and Trump’s removal will result in a Mike Pence administration. The unlikely successful application of the 25th Amendment Section 4 will result in the same thing. The letter assures those who understand it, that even now the US government is in the hands of senior White House officials, the most senior of which is, of course, Vice President Mike Pence. It’s an appeal to Republican senators not to do what they did as Impeachment Articles were assembled and voted for against Nixon. They can abandon Trump secretly and preserve the power of the Republican party, the same way that people within the White House have.

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