Trump’s exit: The options

Gary J. Schmitt

January 12, 2021

9 MIN READ

Trump’s exit: The options
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There are four ways short of death or violence for President Donald Trump to leave the White House.

One, he resigns.

Two, the Vice President and a majority of the Cabinet, invoking the Twenty-fifth Amendment, declare him unfit to hold the presidential office.

Three, a House majority impeaches the President and two-thirds of the Senate judge that he is guilty of the impeachable offenses that the House has charged.

Finally, blessedly, on January 20 Trump walks out the door of the Oval Office, and President Joe Biden, newly sworn, walks in.

Each of these routes has constitutional implications.

To start, a resignation by President Trump seems unlikely. Nothing in his history, let alone the past four years, suggests he is someone to admit wrongdoing and, hence, the need to step aside.

None of his public statements to date, even his video criticizing Wednesday afternoon’s takeover of the Capitol, has admitted to his having any role in fueling what happened.

Considering the awesome powers of the presidency, severely impaired judgment cannot be excluded as grounds for beginning the Section Four process.

This President has understood his office as nothing more or less than a bundle of powers resting on a supposed mandate from the people; that is why he has been so hell-bent on arguing that he actually won the vote by a large margin.

Lost in his assertions is any sense that the office’s great authorities actually rest on the Constitution, which is why they are hemmed in with various duties, including the faithful execution of the nation’s laws and the obligation to preserve and protect the constitutional order.

Although the Framers hoped to construct a system of government in which abuses by one branch would be checked by the others, the last line of defense was, in the case of the president, an oath of office that pledged the oath taker to be true to his word.

But the worth of that pledge, in turn, rests on an assumption about the character of the person taking the oath.

As for the Twenty-fifth Amendment, with its process, laid out in Section Four, for taking the “powers and duties of the office” from the president and transferring them to the vice president, this also seems unlikely.

The Amendment was designed principally for a situation in which a president is physically incapacitated and cannot or will not relinquish his powers; its application to President Trump would be seen as a reach.

The relevant standard for judging whether the Vice President and Cabinet majority should move in that direction is the question of whether, in their judgment, the President is unable “to discharge” the powers and duties of the presidency.

This standard does not, on its face, preclude an assessment that the President’s mental state prevents him from being judged reasonably capable of properly exercising those powers.

Normally, under House and Senate rules, the process of impeachment and trial is designed to mimic a judicial proceeding, thus giving what is ultimately a political decision the character of due process. But the due process is important: It requires evidence and argumentation.

Considering the awesome powers of the presidency, severely impaired judgment cannot be excluded as grounds for beginning the Section Four process.

The problem with this process is that it’s a process, with the characteristics of a slow-motion coup. It depends on officials who owe their appointments to the President conspiring to take the action, reporting to Congress that they have done so, responding to the President’s all-but-certain rejection of that claim, and, finally, hoping that a supermajority in Congress agrees with the Vice President and his supporters.

Putting aside the complicating factors—Trump’s Cabinet is shrinking by the day, and many positions are filled by acting secretaries—one is easily talking about several days before the sequence of events is settled. In the meantime, the “powers and duties of the office” would fall to the Vice President; but they would likely be powers and duties with respect to an Executive Branch severely divided into those agreeing with what the Vice President has done and those opposed, with no assurance that in the end two-thirds of both houses of Congress will agree with the President’s removal.

Article II, Section One, of the Constitution vests the whole of the government’s executive power in the president for a reason. For a short but critical time, this executive unity would be in question.

As for impeachment, with conviction resulting in a ban on Trump’s running for president again, there is no question that President Trump has engaged in impeachable behavior.

Inciting a riot aimed at disrupting the constitutional process of certifying an election is about as “high” an offense imaginable under the standard of “high crimes and misdemeanors.”

Normally, under House and Senate rules, the process of impeachment and trial is designed to mimic a judicial proceeding, thus giving what is ultimately a political decision the character of due process. But the due process is important: It requires evidence and argumentation.

The House and Senate could of course agree that the current situation is serious enough to justify bypassing the process and creating a vastly more expedited one. (Putting a stop to the possibility of President Trump’s running for the presidency again is no small gain; and, as Macbeth said, “if it were done . . . ’twere well it were done quickly.”) But there is a price to be paid for acting quickly.

The process will be seen as rushed because it will be rushed. An explanation will be required as to why precedent is being violated and why the breach isn’t a roadmap for the future.

So, while we debate over the next few days just how President Trump should leave office, an equally important issue that should not go unaddressed is the way he came into office to begin with.

Such arguments are not meant to foreclose these paths to removing Donald J. Trump as President. Still, we shouldn’t minimize the value of Trump’s leaving office on January 20 in the traditional manner—even if he decides, like John Adams, not to attend his successor’s swearing- in.

As Ronald Reagan remarked in his first Inaugural Address, our “orderly transfer of authority” is, as he put it, a “unique” feature of our political order and, in much of the world, is seen as something of a “miracle.”

Having Trump leave the White House by the front door on January 20, however grudgingly, is not to be sneezed at.

That said, it is too late for us to take this political orderliness for granted. Reagan ended his Inaugural address by thanking his predecessor, President Jimmy Carter, for what Carter “did to carry on this tradition.”

By doing so, Reagan reminded his audience that the constitutional order rests on more than, to paraphrase The Federalist (1788),“ambition counteracting ambition”—that, in other words, character matters.

So, while we debate over the next few days just how President Trump should leave office, an equally important issue that should not go unaddressed is the way he came into office to begin with.

Does the current system for choosing presidential candidates increase the likelihood that populist, disruptive figures will become more of a norm, or at least more of a possibility?

A key constitutional lesson of the past week is that if you want to ensure an orderly transition at the end of a presidency, you would do well to think about what kind of individual you have allowed to be president at the start.

(Gary J. Schmitt is Resident Scholar in Strategic Studies and American Institutions)

Copyright: American Enterprise Institute

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