House Democrats are pondering impeaching President Trump for inciting last week's Capitol riot. But before that, they are trying another route, with a nonbinding resolution calling on Vice President Mike Pence to lead a palace coup.
Citing Section 4 of the Constitution’s 25th Amendment, Democrats propose and the House will soon vote on a measure calling for just that — for Pence to assume power, ousting his boss. This is a gimmicky attempt to shirk congressional responsibility, and it represents a threat to the constitutional order that is different from, but no less real, than that presented by the mob that swarmed the Capitol.
The 25th Amendment states that if “the President is unable to discharge the powers and duties of his office,” then the vice president can assume control with the consent of a majority of the Cabinet. If the president disputes this action or meets majority Cabinet resistance in having it rescinded, Congress has 48 hours to decide the question.
Section 4 was written because there are dire situations in which a president could be in office but unable to govern and yet unable or unwilling to admit as much in writing. It is the constitutional remedy if, for example, a president were in a coma or suffering a diagnosable psychotic episode and behaving in a delusional manner, or kidnapped and held under threat of force. Or perhaps a president might simply abscond and be uncontactable, as did former South Carolina Gov. Mark Sanford.
These are the conditions for which the 25th Amendment was written. But even egregious presidential wrongdoing does not imply incapacity to exercise presidential duties. Section 4 of the 25th Amendment was not written to give the Cabinet authority to sit in judgment on a president’s moral fitness to govern, only his physical and mental fitness to govern of his own free will.
Where presidential wrongdoing is alleged, as is the case now, the proper remedy is always the impeachment process. Even in this case, in which Trump’s removal won't be feasible because his presidency will end first, at noon on Jan. 20, the proper response to his alleged wrong is to investigate the matter thoroughly and vote on articles of impeachment, then try the case in the Senate as the Constitution prescribes.
There is no reason now to rush this process, not least because Trump has now acknowledged that he will leave office on schedule. There are material facts yet to be determined, and Trump’s removal from office will be a moot point by the time the Senate can take up the case. If the effort is to impeach Trump and punish him for "high crimes" and/or "misdemeanors," and there certainly seems to be a stronger case now than there was at any time during the past four years, it must be done properly. What is at stake is the constitutional order, which is what the Democrats say they are acting to protect, plus Trump's disqualification from future office.
It remains unknown, for example, whether Trump was involved in preventing a prompt National Guard response to the deadly riot. This and other facts, once established, will help determine whether Trump's culpability was limited to his public statements. A proper impeachment process could also explore details of pressure he exerted on officials, if any, to overturn lawful election results.
To discourage future presidents from behaving as he as, there is a strong argument that Trump deserves to be sanctioned. In one sense, Democrats might be doing Republicans a favor if they were to bar Trump from being a continued headache for his party. He would certainly be that if he were to run again in 2024. Perhaps that, the hope that Trump will be a continued headache for the GOP, is part of the reason why Democrats would prefer to deploy the 25th Amendment.
But to encourage a vice president to seize power when the issue is propriety and not incapacity would create an extremely dangerous precedent for an ambitious and charismatic future vice president.
This is not a partisan issue but an important question of process. Democrats have the constitutional authority to pursue impeachment. That is the only proper tool at their disposal. If they do not wish to use it, they should not be given the option instead to abuse the Constitution's 25th Amendment.
