January 6, 2021 is a day that will live in infamy. On that day, our Capitol was assaulted by a violent mob, forcing the House and Senate to run for cover, interrupting their affirmation that a new president and vice president had been elected. Now that the rioters have been dispersed and the election formally completed, the vital task is to restore a sense of public order and constitutional continuity. Vice President Mike Pence is doing that. President Trump is not. The President’s latest decision, not to attend the inauguration, is yet another damaging expression of his petulance.
Democrats have seized the moment and pressed their partisan advantage by saying President Trump should be immediately removed from office. Some have urged invoking the 25th Amendment, in which senior Cabinet officials would collectively remove him. Others, led by House Speaker Nancy Pelosi, have said they will pursue impeachment, which requires the House to pass specific Articles, followed by a Senate debate and vote.
Neither is a good solution. There are serious, constitutional problems with using the 25th Amendment, and there’s too little time to impeach. In practice, the most important restraint on President Trump will be the refusal of senior government officials to break the law or breach traditional constitutional norms. Still others members of his administration have resigned in protest, indicating the President is increasingly isolated politically.
To understand why the 25th Amendment isn’t the answer, it helps to review its background briefly. The Amendment was passed in 1965, following President Kennedy’s assassination. It was ratified two years later. Entitled ‘Presidential Disability and Succession’, it addresses two problems. The first is a vacancy in the vice presidency, like the one that arose after Lyndon Johnson was sworn in on that fateful day in Dallas. When the vice presidency is vacant, the amendment directs the president to nominate a new one, subject to a majority vote in both the House and Senate. That is how Gerald Ford became vice president (after Spiro Agnew’s removal) and subsequently president (elevated from vice president after Nixon resigned). When Ford became president, a new vice president, Nelson Rockefeller, was selected through the same process.
The second purpose of the amendment is to cope with a president too ill to perform his duties. Although the public didn’t know how ill Woodrow Wilson was, he has suffered a debilitating stroke in 1919 and was bedridden during 1919-1920. Historians are still unsure who was really acting in his name during that period.
To deal with problems like Wilson’s incapacity, the 25th Amendment includes the following language:
‘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.’
The text does not specifically mention physical or mental incapacity, but it does use the key phrase: ‘unable to discharge the powers and duties of his office’. Note that it does not say the president committed a crime. It does not say he is unfit for office. It says he is unable to discharge his office and only that.
Those who want to invoke the 25th Amendment simply disregard that plain language. They want to use the amendment as a quick substitute for impeachment, something they have actually advocated for several years. They see no need for all those pesky Congressional procedures, for all that time-consuming debate about ‘high crimes and misdemeanors’. They see no need to give the President a chance to defend himself. Like so many hyper-partisan proposals, like most efforts to short-circuit the constitution, it’s a dreadful idea.
The 25th Amendment was never meant to circumvent impeachment. That isn’t the plain meaning of the text or a precedent we should set. Now is the time we urgently need to return to firm constitutional principles, not to deform them for immediate gain.
What about impeachment? Whether or not you think that is justified, there isn’t enough time to do it in a serious, responsible way. There isn’t enough time for a full debate about Donald Trump’s behavior since November, harmful as it has been. There isn’t enough time for Trump to defend himself vigorously in the Senate chamber, something he has every right to do.
Since impeachment overturns a national election, it is among the weightiest responsibilities Congress can undertake, second only to declaring war (which it hasn’t done since Pearl Harbor). That’s true even if the president only has a few days remaining in office.
The President’s erratic behavior, his reluctance to accept the election results, his urging supporters to rally and pressure Congress not to accept those results, his delay in condemning violence on Capitol Hill — all are deeply disturbing. The question now is how best to respond. The primary goal should be to muddle through the administration’s final days without inflaming the situation still further.
Both Democrats and Republicans need to help. For Democrats, that means dropping the bullhorn and concentrating on a smooth transition. Look forward, not back. Trying to remove Trump at this late date is a futile, divisive effort.
President-elect Biden took an important step when he refused to endorse removing Trump via the 25th Amendment. He did not reject it entirely, though, and said nothing about impeachment. He could calm the waters by rejecting those. He should be joined by leading Senate Democrats, who are currently competing to be the loudest voices condemning Trump and urging his removal.
Republicans can ease the transition by making clear, firm statements supporting our constitutional procedures and condemning Trump’s recent behavior. The more those statements come from Trump’s long-time supporters, the more weight they carry. That’s why Lindsey Graham’s speech to the Senate on Thursday was so important. That’s why Kelly Loeffler made a genuine contribution when she told her Senate colleagues that she had changed her mind and would accept the Electoral College results. After losing the Georgia runoff, she had returned to Washington expecting to challenge the presidential results. She changed her mind, she said, after seeing the riots. She must have recognized the heightened danger of continuing the election fight.
Vice President Pence and Senate Majority Leader Mitch McConnell have behaved with exemplary rectitude. Their actions make clear that President Trump’s continuing resistance to Biden’s election leaves him isolated within his own party.
What’s left to do? How can America get through the final, flailing days of Trump’s presidency? The best answer is to avoid inflaming an already tense situation. Focus, instead, on the transition, not on settling old scores. Let Pence and Mitch McConnell be the leading voices of a responsible ‘loyal opposition’, standing on stage with President-elect Biden as he takes office.
Now that we have cleaned up the broken glass in our nation’s Capitol, we need to clean up the broken polity it left behind.
Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics and Security.