6 January was not a “Constitutional Crisis”

The weekend after the 6 January events, I found myself watching “60 Minutes.” I don’t normally watch this show but was intrigued that Leslie Stahl would be airing her interview with Speaker Pelosi. I needed to hear her account of what happened.

The lead-in to the interview referred to the 6 January events as a “constitutional crisis.” I think the term was misapplied. A constitutional crisis is a situation that arises where no clear guidance exists. The situation on 6 January was not that.

In the immediate aftermath, much discussion arose regarding applying Section 4 of the 25th Amendment. The 25th Amendment:

Section 1

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

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.

The 25th Amendment, passed in 1965 and ratified in 1967, answered some events that happened in the 1950s when President Eisenhower suffered some incapacitating medical issues and some felt the Constitution did not make it clear on who would act in an incapacitated President’s stead. But the role of the Vice President regarding a dead or incapacitated President was already provided for, in Aritcle II, Section 1, Clause 6:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The 25th Amendment provides more specificity on when and how the transfer of power happens. Notably, the first three sections have already been invoked. Section 2 was invoked first, when Spiro Agnew resigned as the Vice President, nominated and Nixon nominated House Minority Leader Gerald Ford to become the Vice President. Following Nixon’s resignation the following year, Section 1 was invoked and Ford became the President. Section 3 has been invoked numerous times whenever the President underwent a medical procedure, making the Vice President the Acting President for that period of time.

Of course, Section 4 was not invoked, making it a moot point as the House then moved forward with impeachment. The Senate will vote in the coming weeks on conviction. If Trump is convicted (which requires a 2/3 vote per Article 1, Section 3, Clauses 6 and 7), it will be after his term has expired. However, this conviction would invoke Section 3 of the 14th Amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The desired outcome for Trump’s opponents is that he become ineligible to hold any state or federal office. I doubt Trump will be convicted. The House’s impeachment, with the exception of ten Republican members who voted to impeach, was along party lines. The Senate is barely controlled by the Democrats, with 50 Republicans, 48 Democrats, two independents who caucus with the Democrats, and a Democratic Vice President. To achieve a conviction, Senator Mitt Romney would need to bring 16 of his fellow Republican Senators along. I expect Senators Susan Collins, Lisa Murkowski, and Lindsay Graham will join. Who would the remaining 13 Senators be? I don’t expect that will happen given the polarized environment.

Should things get worse during the Biden Presidency, it very well might be possible for Trump to become the second President since Grover Cleveland to serve two non-consecutive terms.

Lastly, the whole matter is largely one of precedent. No U.S. President has been removed from office or convicted of a crime or imprisoned. A look at the histories of other countries is astounding. There are several countries, including some important U.S. allies and strategic partners, with a track record of removing and imprisoning their presidents, prime ministers, and other key leadership. I don’t think most Americans have the resolve to see this happen here.