There are so many questions that remain after yesterday’s deadly insurrection at the U.S. Capitol. How could the Capitol Police have let this happen? How many people are going to lose their jobs because the law enforcement response was so terrible? Why did it take so long for the National Guard to arrive? Will there be repercussions for the armed terrorists?
Amid all the questions, there is one thing we know for sure: The President of the United States is responsible for what happened. Donald Trump egged these people on before the event even started. He appeared at the event himself and told the crowd to march to the Capitol to show strength. His personal lawyer told them they had to engage in “trial by combat” to overturn the election results. He stood by in the White House while it was all happening, doing nothing at first other than watching it on television. He refused to call out the national guard, putting Vice President Mike Pence in the position of having to do so. And when he finally did address the nation in a short faux plea for peace, he couldn’t resist telling the rioters that he loved them because they are special and he knows how they feel.
In the words of the usually-staid Mitt Romney: “This is what the President caused today, this insurrection.” Even Trump’s former Attorney General Bill Barr accused Trump of “orchestrating a mob.” As many are reporting, there’s concern from within the White House that the president is, as was reported yesterday, “out of his mind.” These are breathtakingly strong words to levy against the President of the United States.
President Trump now has less than 13 days left in the Oval Office. That isn’t long, however, every day he remains in office risks more danger and chaos. Which is why, since yesterday, there has been a seemingly-unending string of calls to use the 25th Amendment to remove Trump from office and/or to impeach him for a second time to try to then remove him from office.
These calls are absolutely warranted. Just don’t hold your breath that any of them will happen. The Constitution’s rules for removing a president are not self-executing. Instead, they rely on real human beings acting to protect this country from a madman. Unfortunately, as we’ve seen too much of over the past four years, there just aren’t enough people of principle in positions of power to remove Trump from office.
Lots of people are talking about the 25th Amendment. Speaker of the House Nancy Pelosi and soon-to-be Senate Majority Leader Chuck Schumer have called on Vice President Pence to invoke the 25th Amendment. The not-at-all-liberal National Association of Manufacturers suggested the use of the Amendment as well. And everyone and their mother are talking about it on Twitter.
Don’t get your hopes up. The 25th Amendment was written for physical infirmities that make it impossible for the President to fulfill his duties. As such, it puts the responsibility of invoking its provisions in the hands of the President’s supporters — his Vice President and the members of the Cabinet. Specifically, it requires the Vice President and a majority of the fifteen Cabinet members to vote to remove Trump’s powers. These people, the President’s closest loyalists, would only vote to remove him if he physically couldn’t do his job.
Let’s get real specific here. Can you imagine a world in which Mike Pence, no matter how angry he is at the President, takes action to say that the President is unfit for office? And then beyond Pence, take a look at the list of people in the President’s Cabinet. Can you really come up with a way that a majority of these people will vote to oust Trump? These are all people that owe their jobs to Donald Trump. Many of them have future political aspirations, so even if they look past their current roles, they wouldn’t want to risk alienating the Trump base. In other words, these are not people of principle. They are politically-craven Trumpistas who have stood with him through everything he has subjected this country to.
If the 25th Amendment were determined by a panel of experts or a non-partisan body of retired politicians or some group of people removed from politics, it might have some relevance with Donald Trump. But, it’s not. It’s determined by Trump’s own people. It’s one thing for these sycophants, like Pence did yesterday, to follow the letter of the law and take required actions that go against Trump’s wishes. It’s another thing altogether for them to go out of their way to take a discretionary step to end their boss’s Presidency.
What about impeachment? Articles of impeachment have already been drafted against the President, and Pelosi has said that if the 25th Amendment isn’t used immediately she will have to consider convening the House to impeach the President.
Of all the things being talked about, this is the one that has some super-tiny inkling of a possibility of happening. Why? Because, if you remember back about a year ago, all it requires is a bare majority of the House of Representatives to impeach the President. The House is still controlled by the Democrats, and Pelosi could decide to move quickly on a second impeachment. Her majority is slimmer than it was before, so she couldn’t afford to lose any votes from Blue Dog Democrats (who have been talking recently about reaching across party lines and not moving fast to anger Republicans). But if Pelosi could manage to keep her party together, impeachment is a possibility, albeit a very remote one given the timing.
However, even if impeachment happens, removal would be a virtual impossibility. The Democrats won the Georgia Senate races on Tuesday, but they won’t control the Senate for roughly two weeks, when Georgia certifies the results. Until then, Mitch McConnell continues to control the Senate, and it’s almost impossible to imagine him rushing the Senate to try the President for the second time in less than a year.
And even if he did, a conviction requires a two-thirds vote. Yes, 43 Republican Senators voted last night to reject the objections to the election, but voting to convict the President would be a much bigger step. It would require an affirmative act of bravery and principle that we have seen from almost none of them over the past four years.
Once Joe Biden becomes President on January 20, the Democrats could still try to impeach and convict President Trump. Ex-Presidents can be impeached and convicted. It wouldn’t result in him being removed from office (because he’s no longer President), but it could result in him being disabled from ever running again, which would have immense value for 2024. And by the time Trump leaves office, Schumer will control the Senate, so he can move the trial quickly and with rules that favor conviction. However, it’s still very hard to imagine enough Republicans voting to convict the President. Maybe with the stakes being lower and there being some incentive for those looking at a run in 2024 to clear the field, more might act. But 17 of them? That seems a far cry from reality.
So what will happen?
None of this is to say the President shouldn’t be removed from office. He absolutely should, and the Constitution provides tools to do so. But each relies on Republican politicians to act in ways that go against everything we’ve seen from them for years. In other words, if we wanted President Trump to be held more accountable, we needed to elect people who were more likely to hold him accountable. The Constitution can’t do it itself.
This leaves us with waiting until January 20th. On Thursday morning, the day after the mob at the Capitol, Trump stated that even though he still believes he won, he will abide by the now-final electoral vote count and “orderly” leave the White House in less than two weeks. Let’s hope this is one promise of his that he follows through on.
David S. Cohen is a law professor at Drexel University Kline School of Law in Philadelphia.