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Thursday, March 30, 2017

Impeachment vs. the 25th Amendment

 


Back in late January, I wrote:

He really is off-the-hook crazy. It would be justified to remove him from office if it were possible, but the 25th Amendment solution that people keep talking about is unrealistic. This is the text of Section 4:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
If I'm reading it correctly, using the 25th Amendment to remove a President from office is even more difficult than impeachment/conviction. We need 1/2 of the House to vote to impeach the President, and 2/3 of the Senate to convict. The 25th Amendment requires 2/3s of BOTH houses to remove the President.

Two months later, I'm still pretty sure I read that correctly, though I'm not totally sure what to make of the text in bold -- what's another body like Congress? Is there a loophole? Anyway, today Booman wrote:

The people who are most acutely aware of Trump’s mental deficiencies and titanic character flaws are those who have to deal with him every day, and they’re the only ones who can conceivably go to a Republican Congress and convince them that it’s just not safe to leave Trump behind the wheel.
Trump’s tweets are only a small part of the problem, but they’ve already caused problems with allies like Australia, Germany, Mexico and the United Kingdom. His policies and offhand remarks have created unnecessary tensions in places as diverse as Taiwan and Iraq.
So, the solitary point here is that the 25th Amendment is an option and the members of Trump’s cabinet can’t pretend that they don’t have ability to do something to save the country. They have the tool they need, and if the majority of Trump’s cabinet ever goes to Congress and tells them that the president isn’t fit to serve, they’ll only be telling Congress what the Democrats, the Intelligence Community, our allies, and every newspaper editorial board in the country has been telling them.
If they were ever to take that step, they’d have massive support. And, I believe, if James Mattis and a majority of the cabinet went to the Republicans in Congress and said that Trump cannot continue to be our president, that they’d have to listen.
In any case, they’d be much more likely to respond to an invocation of the 25th Amendment than they would be to impeach and convict the president on their own initiative.

That's pretty much the polar opposite of my feeling on the matter. So, I let him know that on the Twitter machine and we had an exchange about it.



I dig Booman, and anything he writes deserves a lot of consideration. What he's essentially asserting is that it's more likely that about 80 House Republicans will, within a three week window, vote to remove Trump from office if half the Cabinet goes to the House and says that Trump's a nutbag, than 20 or so will do so in an indefinite period of time if, say James Comey and a bunch of intelligence officials or John McCain and a handful of Senators tell them he colluded with Russia to rig the election or pocketed hundreds of millions in a deal with China or Saudi Arabia. A difference of 60 or so Congresscritters. That could be right (and as I write this I haven't made a conclusion), but let's look at who makes up Trump's current cabinet:

  • VP Mike Pence
  • Secretary of State Rex Tillerson
  • Secretary of the Treasury Steven Mnuchin
  • Secretary of Defense James Mattis
  • Attorney General Jeff Sessions
  • Secretary of the Interior Ryan Zinke
  • Secretary of Agriculture Sonny Perdue
  • Secretary of HUD Ben Carson
  • Secretary of Transportation Elaine Chao
  • Secretary of Energy Rick Perry
  • Secretary of Education Betsy DeVos
  • Secretary of Veterans Affairs David Shulkin
  • Secretary of Homeland Security John Kelly

There are also currently seven "Cabinet-level officials." I don't know if they'd count or not, but for simplicity's sake, let's say they don't.

So, you need Pence plus seven of the remaining 13. I'm not sure Pence turns on Trump, but looking at the rest, I think three are either unconditionally with Trump and/or Russia: Tillerson, Sessions, and Carson.

There are three that I think would definitely turn on him: Mattis, Shulkin, and Kelly.

That leaves a squishy seven, and four of those would need to join the defectors. How much weight would a group of, say, Mattis, Shulkin, Kelly, Perry, Chao, Mnuchin, and Zinke carry in the House? I'm not sure, but that's a key question.

Something else to keep in mind is that Trump is that Trump has apparatchiks throughout the government keeping tabs on the appointees. So if Cabinet officials begin to whisper about invoking the 25th, Trump and his loyalists will likely know before they send that initial letter to Congress.

 In 1926, the Supreme Court decided that the President can fire Cabinet officials he appoints:

In 1926, a similar law (though not dealing with Cabinet secretaries) was ruled unconstitutional by the United States Supreme Court in the case of Myers v. United States, which affirmed the ability of the President to remove a Postmaster without Congressional approval. In reaching that decision, the Supreme Court stated in its majority opinion (though in dicta), "that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid."

So Trump could theoretically dismiss a handful of the disloyal officials and leave them without the numbers necessary to go to Congress.

There is a hybrid option; if he fires a few Cabinet officials, it could alarm Congress enough to start the actual impeachment process.

After writing this, I continue to think that while impeachment/conviction is more likely than the 25th Amendment, both are possible, but both are by themselves unlikely. However, I generally feel like Atrios did in February:

Count me among those who don't really think that Trump will remain president for 4 years. I don't have a strong belief about exactly how/why he will leave office, it's just that I can weirdly see multiple plausible exit paths.

And, of course, with the Flynn news, each of these exit paths just became a bit more likely to happen.