Amendment 25?

Amendment 25?


William B. Turner

At the moment, it looks far more likely that Pence will induce the cabinet to declare the Donald unfit under the Twenty-fifth Amendment than that Paul Ryan will allow impeachment to proceed in the House of Representatives.

Pence has a lot more to gain from removing the powers of the presidency from Trump than does Ryan. As we have seen with the failed attempt to repeal the Affordable Care Act and the successful attempt (!) to enact tax “reform,” the problems the Republicans are having with their agenda lie in Congress at the moment, not in the White House. If Ryan and McConnell can corral enough votes, they can count on Trump’s signature, because Trump knows and cares even less about policy than most Republicans, which is hard to do, so he’ll sign anything anyone tells him to if they present it as a victory for Trump himself and the team he thinks he is on at the moment.

So, the specific individual who occupies the presidency is of no real importance to Ryan at the moment, so long as that individual is a Republican.

Pence, by contrast, if he invokes the Twenty-fifth Amendment, gets to become “acting president,” an office that is completely undefined, both in the Amendment itself, and in historical practice because we have never invoked the Amendment against any president before. Ronald Reagan availed himself of the option of voluntarily bestowing his powers as president onto George H.W. Bush for several hours while he underwent surgery, but he recovered those powers himself as soon as he was able after the surgery. George I thus served as “acting President” for a few hours, but no crisis erupted in that brief window that would have allowed him to show his mettle.

At a minimum, being “acting President” must mean to assume the formal powers of the presidency. That is the gravamen of the Amendment – the concern that the sitting president lacks the mental ability to do the job and thus must relinquish, voluntarily or not, the responsibilities of the office, such as signing bills, making appointments, negotiating treaties, etc. One could go through the Constitution and make a list of those powers if one were so inclined.

There might be some fighting around the margins if the Donald decided he wanted to insist on keeping some of the incidental trappings of being president, but he might well just retire to New York and leave us all alone, or at least become far less embarrassing just by dint of no longer being president.

Going the Twenty fifth route would also allow Pence to avoid the difficulty of having to decide about pardoning the Donald, at least right away, anyway. The impeachment provision in the Constitution states that the penalty will extend no further than to removal from office upon a finding of guilt, but that the person so removed remains liable for any criminal prosecution that might arise from the acts that resulted in removal from office. Gerald Ford created a firestorm soon after Nixon left office by pardoning Nixon. That act helped prevent Ford from winning election as president in his own right in 1976.

But going that route carries the peril of putting Pence in the position of having to make, and take responsibility for, major decisions as “acting President,” which inevitably is going to make some people mad at him. He wouldn’t be in exactly the same position as Ford was, since Ford became just president, full stop, after Nixon resigned. But we have no way of knowing how important this distinction will be to the public. Pence would be very much in the public eye, and most people would see him as president, “acting” or not.

More importantly, Pence has a stronger case for acting just now than does Ryan. The evidence for impeachment worthy crimes by Trump is quite obvious to anyone who is not wearing the partisan blinders that Ryan has firmly in place. As long as he can get his bad bills signed, he doesn’t care.

In the wake of another interview by the Donald with the New York Times, however, lots of people are openly asking about the president’s mental fitness for the job. Partisan blinders operate here, too, but Pence stands more as Brutus to Trump’s Caesar than does Ryan. If Pence takes out Trump, he gets lots of personal glory that Ryan can’t get by initiating impeachment. The Twenty fifth Amendment specifies the Vice President as the leader of the legal coup inside the administration, and he gets the power if he succeeds. Ryan is just a cog in the impeachment machine, or the flywheel, since he can stop or start the proceedings, but he gets no personal glory if Trump gets removed. Everyone remembers who became president after Nixon resigned. Who was Speaker of the House at the time? (It was Carl Albert, who represented Oklahoma in the House for thirty years, from 1947 to 1977, the last six as Speaker of the House.)

So, for those of us who eagerly want to be shut of president Trump,our best hope at the moment lies with Vice President Pence and an internal administration coup de main.