Ousting Trump Early Incredibly Unlikely

The President of the United States is a national security threat. Can we get rid of him now?

The Washington Post editorial board is making no bones about it: “Trump caused the assault on the Capitol. He must be removed.

PRESIDENT TRUMP’S refusal to accept his election defeat and his relentless incitement of his supporters led Wednesday to the unthinkable: an assault on the U.S. Capitol by a violent mob that overwhelmed police and drove Congress from its chambers as it was debating the counting of electoral votes. Responsibility for this act of sedition lies squarely with the president, who has shown that his continued tenure in office poses a grave threat to U.S. democracy. He should be removed.

Mr. Trump encouraged the mob to gather on Wednesday, as Congress was set to convene, and to “be wild.” After repeating a panoply of absurd conspiracy theories about the election, he urged the crowd to march on the Capitol. “We’re going to walk down, and I’ll be there with you,” he said. “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” The president did not follow the mob, but instead passively watched it on television as its members tore down fences around the Capitol and overwhelmed police guarding the building. House members and senators were forced to flee. Shots were fired, and at least one person was struck and killed.

Rather than immediately denouncing the violence and calling on his supporters to stand down, Mr. Trump issued two mild tweets in which he called on them to “remain” or “stay” peaceful. Following appeals from senior Republicans, he finally released a video in which he asked people to go home, but doubled down on the lies fueling the vigilantes. “We love you. You’re very special,” he told his seditious posse. Later, he excused the riot, tweeting that “these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away.”

I lack the legal expertise to assess whether Trump’s words yesterday constitute direct incitement of violence under criminal law. The Supreme Court has, rightly, set that bar very high and parsing those rulings is necessarily challenging. But there’s no question that he acted, at the very least, with reckless disregard for what would happen and is morally responsible for what followed. [UPDATE: Eugene Volokh, who is very much qualified to make this assessment, agrees.]

Alas, ousting a President is next to impossible. The Democratic House could certainly impeach him again and, indeed, might be able to do that today. There’s no Constitutional requirement for a drawn-out process. But the fact that seven United States Senators voted to double down on the stolen election nonsense after their workplace was stormed makes me incredibly skeptical that there are 67 who would take such drastic action. And the Senate is in fact required to hold a trial. Realistically, it’s not feasible even if the votes were there given that Trump’s term expires in 13 days.

That leaves the 25th Amendment. Vice President Pence and what’s left of the cabinet could act today to remove Trump and the Democratic-controlled House could simply refuse to take up the matter over the next two weeks. That was a wild fantasy before yesterday afternoon. It’s merely highly improbable now.

Pence himself may be amenable:

U.S. Sen. Jim Inhofe has been in Congress 34 years and in politics more than 50. As mayor of Tulsa, he once had garbage dumped on his lawn by angry residents.

But it’s unlikely anything matched what he experienced Wednesday when the U.S. Capitol was stormed by people apparently intent on keeping President Donald Trump in office.

[…]

Inhofe hedged on who he thought might be to blame for what happened, but he allowed that Trump did not do enough to stop it.

“He’s only put out one statement that I’m aware of,” Inhofe said. “This was really a riot. He should have shown more disdain for the rioters. I don’t want to say he should have apologized — that’s not exactly accurate — but he should have expressed more disdain.”

Instead, Trump directed his disdain toward Vice President Mike Pence, who refused to do what Trump wanted him to do — illegally refuse to accept the final election results in his role as Senate president.

By doing so, he may have alienated one of his most steadfast allies.

“I’ve known Mike Pence forever,” Inhofe said Tuesday night. “I’ve never seen Pence as angry as he was today.

“I had a long conversation with him,” said Inhofe. “He said, ‘After all the things I’ve done for (Trump).'”

That sounds more petulant than defiant, frankly. But, as much a toady as Pence has been, he did step up to firmly resist Trump’s insistence that he somehow declare the votes invalid. Blatant disregard for the Constitution, apparently, was a bridge too far. So it’s at least conceivable that he’d be willing to vote to remove Trump.

And, apparently, there is at least some rumbling in the cabinet. ABC News:

There have been discussions among some members of the Trump Cabinet and allies of President Donald Trump about the 25th Amendment, which would be a vehicle for members of the cabinet to remove Trump from office, multiple sources with direct knowledge of the discussions tell ABC News.

It is unclear how extensive these conversations have been or if Vice President Mike Pence is supportive of such action. Many have been horrified by Wednesday’s events and Trump’s encouragement and lack of engagement to call in resources to stop the protesters, the sources said.

Trump has only 14 days left in office, but some lawmakers want his presidency over sooner, calling for his impeachment in the wake of Wednesday’s violence on Capitol Hill that left at least one woman dead.

Rep. Ilhan Omar, D-Minn., announced that she’s drawing up articles of impeachment, tweeting: “We can’t allow him to remain in office, it’s a matter of preserving our Republic and we need to fulfill our oath.”

Honestly, Omar’s early call for impeachment—which I endorse as a matter of principle—likely makes it harder for the cabinet to oust him. The report goes on to cite other Democratic Congressmen calling for impeachment or 25th Amendment action. Again, that really doesn’t tell us anything about what the cabinet might do.

CNN (“Angry Republican leaders float removing Trump from office“) provides more hope:

After violent pro-Trump protesters stormed the US Capitol on Wednesday, a growing number of Republican leaders and Cabinet officials told CNN that they believe Donald Trump should be removed from office before January 20. Four of them called for the 25th Amendment to be invoked, and two others said the President should be impeached.

“He has to be impeached and removed,” said one current Republican elected official.

A former senior official said the President’s actions were egregious enough to remove him even with such a short time left in his tenure.

“I think this has been a huge shock to the system,” said the former official. “How do you keep him in place for two weeks after this?”

On the one hand, this is encouraging. It demonstrates that some Republicans recognize the magnitude of what unfolded yesterday. But the fact that they’re too cowardly to put their name to it—even the one out of government!—does not exactly inspire confidence that cabinet officials who would likely face death threats for their action will put everything on the line.

Still,

Some Cabinet members are holding preliminary discussions about invoking the 25th Amendment, a well-placed GOP source told CNN.

The discussions are ongoing but it’s unclear if there will be enough Cabinet members to result in Trump’s removal. The conversations have reached Capitol Hill where some senators have been made aware of the discussions, the source said.

Within minutes of protestors breaching the Capitol on Wednesday afternoon, Republicans were revisiting the idea of removing Trump from office, a choice that nearly all of them passed on making a year ago during last year’s impeachment trial.

The forceful denunciations of Trump are also unprecedented. Former President George W. Bush, who has kept a low profile, released a strongly-worded rebuke Wednesday evening calling the “insurrection” at the Capitol a “sickening and heartbreaking sight.” While not mentioning Trump by name, Bush said he was “appalled by the reckless behavior of some political leaders since the election and by the lack of respect shown today for our institutions, our traditions, and our law enforcement.”

Mitt Romney, the Utah senator who was the only Republican to vote to convict the President on an article of impeachment last year, went further, calling the President a “selfish man” who “deliberately misinformed his supporters” about the election. Romney also called the attack on the Capitol an “insurrection” and blamed Trump, saying he “stirred [supporters] to action this very morning.”

Wyoming Republican Rep. Liz Cheney, a member of the House leadership, echoed Romney’s anger and frustration at Trump. “There is no question that the President formed the mob. The President incited mob, the President addressed the mob,” said Cheney on Fox News. “He lit the flame.”

And Sen. Tom Cotton of Arkansas, an otherwise staunch ally of Trump’s, was unsparing. “It’s past time for the president to accept the results of the election, quit misleading the American people, and repudiate mob violence,” Cotton said.

Other Republicans on Capitol Hill were furious as well with the President.

“The President needs to call it off,” Rep. Mike Gallagher of Wisconsin told CNN’s Jake Tapper. “Call it off! It’s over. The election is over.”

Rep. Adam Kinzinger of Illinois dismissed Trump’s Wednesday afternoon tweet asking rioters at the Capitol to “remain peaceful.”

“That’s cowardice,” Kinzinger told Tapper. “He needs to stand up and say, I lost the election, let the count go ahead.”

But as Trump seems unlikely to make those concessions, two longtime Republican activists and allies of the White House said the President must go.

“Pence should move against him on the 25th Amendment,” said one.
“They need to invoke the 25th Amendment immediately,” said the other.

So, on the one hand, we have strong condemnation from the most recent past Republican President. One who, unlike Trump, was elected to a second term. And we also have the most recent pre-Trump Republican Presidential nominee and the daughter of the most recent pre-Trump Vice President. Ordinarily, that would be a sign of huge momentum. But they’ve all long past signaled that they’re more loyal to the country than Trump. They are, for all practical purposes, the enemy camp.

Axios has a similar report (“Republicans consider drastic options to stop Trump“) adding little additional insight. But they close with a crucial point:

The bottom line: No House or Senate Republican leaders are yet championing these ideas — and it’s too soon to know whether those talking about them are just letting off steam after a shock to the democracy, or whether a critical mass exists to proceed.

Mitch McConnell has in fact shown some backbone in recent days, trying to head off this showdown. But he’s several days late and dollars short. House Minority Leader Kevin McCarthy was actually quite forceful yesterday afternoon on CNN, but even he stopped short of blaming Trump more the obliquely.

I just see too little evidence that Republican leaders have the courage to defy Trump in such a spectacular way. And, even if they did, they may well calculate that ousting him would actually stoke the conspiracy theories further and do more damage than good.

I fear we are simply stuck with Trump for another 13 days.

UPDATE: David Priess and Jack Goldsmith have a very good backgrounder on all of this at Lawfare. In particular, they clarify that,

With his incitement of the attack on the Capitol building, Trump cleared the hurdle of “high crimes and misdemeanors,” which, along with treason and bribery, is a constitutional trigger for impeachment. Articles of impeachment could be finalized within minutes and voted on with minimal debate. The Senate could then immediately convene to try the president. The Constitution requires ” the Concurrence of two thirds of the Members present” for conviction. It does not, however, require a lengthy trial or specific procedure, even though Congress has developed elaborate rules to govern—and elongate—the impeachment and trial process. The Senate played fast and loose with its own rules to facilitate Trump’s acquittal a year ago and could do the same in the other direction if its members had the will to secure a quick conviction.

But they agree with my assessment that it’s incredibly unlikely to happen. We also agree that,

. . . Trump’s unhinged post-election behavior, his manifest inability or unwillingness for weeks to distinguish reality from fiction about the results of the election, and his detachment from exercising the basic responsibilities of the office, would meet the “unable to perform” standard of the 25th Amendment.

FILED UNDER: Donald Trump, Twenty-Fifth Amendment, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. mistermix says:

    House Minority Leader Kevin McCarthy was actually quite forceful yesterday afternoon on CNN, but even he stopped short of blaming Trump more the obliquely.

    Then he made up part of the 65% of Republicans in the House who believe that the election should be overturned because their side didn’t win. Who cares what he said on CNN?

    The vote is what matters, not the pretty lies he tells CNN.

    21
  2. Jim Brown 32 says:

    Isnt the new Senate in session now? We can cook this turkey as soon as Rev Warnock and Mr Ossoff are seated.

    Trump doesn’t care about any of this but its not about him. Its about barring him from future Federal office and denying him the pension and Secrets service protection… Things that will burn his craw till he croaks.

    12
  3. mattbernius says:

    I am calling all of my representatives’ offices today to demand impeachment. I realize that its a long shot. But this cannot stand.

    I encourage everyone to do the same.

    11
  4. Neil Hudelson says:

    Kevin McCarthy was actually quite forceful yesterday afternoon on CNN, but even he stopped short of blaming Trump more the obliquely.

    If various Twitter reports are true (big if, but I believe the Lincoln Project reported it as well), he was only forceful after his staff threatened to resign en masse. To paraphrase Dylan, apparently he needs a weatherman to tell him which way the wind blows.

    9
  5. James Joyner says:

    @Jim Brown 32:

    Isnt the new Senate in session now? We can cook this turkey as soon as Rev Warnock and Mr Ossoff are seated.

    That will give the Democrats 50 votes. To remove Trump and disqualify him from future office will require 17 Republicans to join in.

    7
  6. ptfe says:

    @mattbernius: I’m calling to demand impeachment of the whole brigade of Senate and House leaders of this insurrection. If those senators and representatives who came back to the floor and still voted against the results of the election walk, they’ll do it again every 2 years. There’s no check on this unless the chambers enforce sedition laws.

    9
  7. Daryl and his brother Darryl says:

    Removing him from office and prohibiting him from ever serving again, as well as arresting everyone who attacked our Capitol Building, including Guilliani and Donald Trump Jr. and Cruz and Hawley is absolutely necessary to stop this slide to authoritarianism. It is the only way to nip this in the bud.
    If we fail to do that, then soon we will look back at this as just another step in the transition to a dictatorship.

    7
  8. mattbernius says:

    @Daryl and his brother Darryl:

    If we fail to do that, then soon we will look back at this as just another step in the transition to a dictatorship.

    One of the more disturbing reads from this morning was a scholar of Rightwing Violence noting how this entire incident echos with parts of the “Turner Diaries.” For those lucky enough not to know about that book, it’s a work of fiction about the bloody rise of a genocidal, right-wing ethno-world.

    Here’s the tweet that is particularly chilling:

    Turner Diaries also prominently features an attack on the U.S. Capitol, though somewhat different than what we saw. In the book it's a mortar attack. But significantly, the point of the attack is NOT mass casualty, but showing people that even the Capitol can be attacked (4)— Kathleen Belew (@kathleen_belew) January 7, 2021

    1
  9. SKI says:

    Point of Clarification on the 25th Amendment option: it doesn’t require Republicans in the Congress to do anything.

    Short version: If Pence and a majority of the Cabinet invoke the 25th and Congress simply does nothing during its 21 day period of consideration, the clock runs out on the Trump Presidency.

    Long version:

    he 25th Amendment’s Section 4 puts the vice president up front in the decision to assess the president’s ability. Without the vice president’s assent, no declaration of disability can occur. If “a majority of … the principal officers of the executive departments” (effectively the Cabinet) agrees with the vice president’s assertion of disability, then Presidential powers would transfer to the vice president temporarily for the duration of the disability. When the vice president and the majority of the principal officers transmit to the Senate’s president pro tempore and the House’s speaker their determination, the vice president becomes acting president.

    The president can challenge the declaration. If he does, the vice president and majority of the principal officers of the executive departments can disagree with the president’s assertion of ability, and they have four days to again declare that he remains unable. The dominant understanding of the 25th Amendment is that the vice president continues as acting president during this four-day period. If the vice president and majority of the principal officers resubmit their determination of disability, the vice president remains as acting president until Congress “decide[s] the issue.” If Congress within 21 days (measured in various ways) “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.”

    That said, I don’t expect Pence or a majority of Trump’s cabinet to trigger it but the bar isn’t anyone in Congress.

    6
  10. SKI says:

    @mattbernius: Yup – and they erected a gibbet on the west side of the Capital yesterday as an explicit call to “The Day of the Rope“.

    2
  11. mistermix says:

    @mattbernius: I’m sure Joe will get right on it, as soon as he finds out what his leadership wants him to say, and only if he’s going to be right in line with them.

    God I miss Louise Slaughter sometimes.

    2
  12. mattbernius says:

    @mistermix:
    Yeah… I know. And yes to all counts.

  13. Jim Brown 32 says:

    @mattbernius: You hit on the the real motivation I believe Trump had in inciting this shit show.

    This was a show of force designed to show Republican lawmakers that he can make them unsafe. There’s no question he’s got an army of head buster out there at his beck and call.

    This intimidation tool will be useful in keeping Republicans from simply turning the page on him after Jan 20

    5
  14. MarkedMan says:

    @SKI:

    If Pence and a majority of the Cabinet

    Anyone know who is in the Cabinet? And does “acting” count?

  15. SKI says:

    @MarkedMan: Current Cabinet

    Not an expert in this area but I believe acting leaders do count as they wield all powers during their time as acting heads of the department.

    1
  16. Kathy says:

    Any in the cabinet who harbor even the smallest future political ambition will not dare oust the Traitor in Chief, because their political career would be over if they did.

    Caligula was one of the most despised Roman emperors in history. He was finally done in by his own bodyguards. Their leader Cassius Chaerea, got to stab him to death. He was promptly executed by Caligula’s successor, the emperor Claudius I.

    Shorter version: no good deed goes unpunished.

    Impeachment and removal would be far more likely were we two months rather than two weeks away from the end of the term. That would give the GOP’s Congressional leadership, such as it is, time to build up a strong enough case against Trump to secure the support of enough Republican Senators. Not this late in the term.

    I reiterate, though, that Trump must be prosecuted and incarcerated after he leaves office, and I don’t even care for what charge.

    1
  17. HarvardLaw92 says:

    I suspect that the twin spectors of the threat of mass resignations and the threat of the invocation of the 25th (which is far far more likely than impeachment, which is not going to happen) may rein him in. I don’t expect humility, which is something he’s incapable of, but the threat of being essentially left in an empty building without his treasured perks of office will resonate with him.

    3
  18. MarkedMan says:

    @SKI: Yeah, I don’t see this crew of corrupt hacks taking any initiative. To a one, they are grifters.

  19. de stijl says:

    When I was a kid I loved I, Claudius on PBS on Sunday night. A lot of it was beyond my ken at the time, but it inspired me to know more.

    I became an expert on Imperial Rome in two weeks. Then I investigated what came before and what happened after. Thought about the frontiers and why borders were manned.

    I was a poor kid from a poor family with a sketchy mom.

    PBS did me good service. It elevated me. It provoked me. A goodly portion of my will is going to my local station and to the NPR affiliate.

    7
  20. mattbernius says:

    I’m still going to call, but Congress has opted to go silent for the next two weeks. To some degree, I wonder how much of this is necessitated by trying to clean up after the siege (for example, IT has one hell of a job ahead of it as chances are every device with a USB drive will need to be wiped).

    The House isn’t coming back into session until after the inauguration.

    The Senate has adjourned until Jan. 19.

    1
  21. JohnSF says:

    Just posted on other thread, but it won’t be out of place here:
    If Trump is still at liberty to do so at the inauguration, what odds that he stages a rival rally and “nods and winks” another insurrectionist mob then?

  22. mattbernius says:

    @HarvardLaw92:

    I suspect that the twin specters of the threat of mass resignations and the threat of the invocation of the 25th (which is far far more likely than impeachment, which is not going to happen) may rein him in.

    While I hope you are right, there is little in the past 4 years that suggests he’s stable enough to be reliably reigned in for the remaining 14 days.

    4
  23. MarkedMan says:

    If this was going to happen, it would have happened. The only way it happens now is if Trump runs out of the White House, naked, screaming about aliens subjecting him to anal probes. (And even then 2/3 of Republicans would say the aliens are Antifa).

    All senior Republicans are part of a cult (and it’s not Trump’s cult – he’s only the current head). There are those who “believe” in the sense that culties believe things: with all their heart and soul but completely divorced from reality. And there are those cult members who hold the believers in contempt but have tied their whole future to what they can get from the cult.

    There has been a lot of debate here about whether Trumpers are part of a cult or not, but if you define cult as I do, it is very clear. A cult is an organized group that demands intense belief in things that are fantastical or nonsensical, and causes the believers and those around them significant harm. By that definition Republicanism is a cult and has been for the better part of the last two decades, long before Trump was elected.

    The idea that enough of the cult officials will come around to their senses and take action to end the harm is wishful thinking. Sure, a few people tried to stop Jim Jones from dispensing the Kool-Aid, but they got a bullet in the head. There weren’t enough of them to make a difference and that was with the motivation of preventing their own deaths.

    The Republican Party is a cult. If we are lucky, cults gradually die out (anyone get accosted by a Moonie lately?). But it can take generations to disappear completely (there are still true believers in Jim Jones alive today) and they never dramatically end.

    8
  24. HarvardLaw92 says:

    @mattbernius:

    And I agree with that. I probably should have added “and hope” to qualify it. At basis, Trump is still a child seeking validation. Emotionally he has never moved forward from the little boy trying to be good enough for Fred. Behind all the bluster and bravado is a small child who never got over the fact that he wasn’t loved and wasn’t good enough for his father.

    While I do not mean it in any way to suggest that I feel sympathy for the man, it’s a tad pathetic that his entire life has been spent trying to get validation, beginning with his father, through old money New York, through whatever other sycophants with money would give him the time of day, through his television adventures, though this abortion of a presidency. The threats I mentioned will either frighten that inner child into submission, or they’ll send that child off into a tantrum that will make the 25th much, much easier to justify in the court of public opinion (which is still what those clowns in the cabinet care about). I hope for the former, but I’ll take the latter if that’s what’s required. We’ll never get an impeached Trump, but a neutered Trump is good enough to get us through 20 January.

    5
  25. CSK says:

    Trump has promised an orderly transition, but added: “We will continue our fight to ensure that only legal votes are counted.”

    Translation: “I intend to goad my followers into causing as much trouble as possible between now and January 20.”

    4
  26. OzarkHillbilly says:

    @CSK: He’s not gonna stop goading them after the 20th.

    3
  27. Andy says:

    I said in the other thread he should be impeached. Even if he can’t be removed, impeachment still is warranted.

    However, I’m firmly against utilizing the 25th amendment. That was specifically designed to transfer Presidential authority in the event that a President should become incapacitated and be “unable” to perform the duties of the office. It was not designed or intended as a short-cut to the impeachment process to allow a bunch of unelected officials to remove a President for cause.

    Process matters. Ends are not self-justifying. Using the 25th amendment really would be coup-like since it would consist of unelected officials remove the President’s authority for reasons other than incapacitation.

    Rather than cowardly and anonymously talk to reporters about “discussions” on the 25th amendment among Trump’s staff, these cabinet officials should instead resign, go public and repudiate the President. Such cowardly people should not be encouraged to engage in covert coup-plotting, they should be encouraged to quit and go public.

    Using the 25th amendment in this way is not a norm worth breaking, not even for Trump. Plus it would validate what Trump’s supporters have been saying all along about the deep state and conspiracies to have him removed from office by whatever means necessary. So it wouldn’t be wise from that angle either.

    Another alternative is a formal censure, though I think impeachment is the better alternative even knowing the Senate wouldn’t have time for a trial and likely wouldn’t remove him even if it did. But forget about the 25th amendment. It shouldn’t be normalized for any use other than its original intent.

    5
  28. Andy says:

    @mattbernius:

    I’m in communication with my representatives frequently – usually several times a year. I let them know my feelings about this vote a few days ago and then yesterday about this fiasco.

    My view is that everyone should do that, but it seems almost no one does. I honestly don’t understand people (and I know very many of them personally) who spend tons of time debating politics online and on social media, but never make their views known to their representatives. It doesn’t take any more time to send an email or call the rep’s office than it does to write a blog comment or a couple of tweets.

    Anyway, I hope people take your advice – all citizens need to let their representatives know what they think.

    3
  29. CSK says:

    @OzarkHillbilly:
    I know. I’m hoping he does what Sarah Palin did–just lose interest and resume eating Taco Bell Crunchwrap Supremes and watching daytime television.

    Palin lacks some of Trump’s pathologies, but she and Trump are equally lazy, incurious, and self-absorbed.

    3
  30. SC_Birdflyte says:

    A five-part solution: Impeach, Convict, Indict, Try, Incarcerate. Steps 1 and 2 could be done within the 13 days remaining. It would take extraordinary efforts, but it’s possible.

    1
  31. gVOR08 says:

    @mattbernius:

    I encourage everyone to do the same. (call your congressman)

    My congressman is a standard issue Tea Party GOP who voted to not count the AZ vote. As he needs to be to get elected in this corner of FL. I may call, or fax, just to say he can’t fool all the people all the time, but it’s a waste of time.

    3
  32. KM says:

    @Andy:

    in the event that a President should become incapacitated

    Define “incapacitated”. Would someone in the middle of mental illness episode count? What if one is awake but suffering from altered consciousness; POTUS usually sign over temp power undergoing aesthesia since nobody wants the guy making world-breaking decisions with impaired thinking abilities.

    Trump’s decompensating *hard*. It’s visible and based off recordings from the last few months, clearly accelerating. If he were anyone other than POTUS, an insanity plea would be drawn up for his defense at the inevitable hearings. The media and a huge chunk of the country is tap dancing around the fact the man is mentally ill and getting worse.

    5
  33. Joe says:

    mattbernius and HarvardLaw92:
    I think this editorial from the NYT strikes the correct strategy. Use the 25th Amendment as a quickly executed temporary restraining order and follow up with impeachment, both to legitimize the 25th Amendment action and to block him from subsequent public office. All of that, however, assumes a VP and Cabinet willing to pull the trigger. Therefore, I think it assumes too much.

    3
  34. de stijl says:

    In four years we became a banana republic under Trump.

    s/ Thanks, Republicans! \s.

    2
  35. gVOR08 says:

    @de stijl:

    In four years we became a banana republic under Trump.

    It’s taken decades. This crap goes back to at least Goldwater.

    2
  36. CSK says:

    @Joe:
    It’s a good piece…but–and it’s a big but–if yesterday was any indication of what Trump supporters are willing to do to support him, what lengths would they go to if he were forcibly removed from office? Firebomb the Capitol Building? Assassinate Pence and other cabinet members?

    I know I’ve been calling for Trump’s immediate removal, but what would the consequences be? Possibly a lot worse than we saw yesterday.

    5
  37. Andy says:

    @KM:

    If medical professionals determine he is cognitively unable to carry out the duties of the office, then that would be sufficient. The opinions of observers on Twitter and in blog comments are not.

    But most people are pretty open about this being a means-justifies-end proposition. I think there is a disconnect when people talk about how democracy is sacred on one hand, and then advocate for the undemocratic removal of a President by unelected officials on the other hand using a process that was never intended to be deployed in this circumstance.

    2
  38. Kylopod says:

    Even though I agree it’s unlikely they’d follow through, I do think there’s a real possibility they went to him in private and told him that if he didn’t behave himself until the inauguration, they would invoke the 25th. Of course, it’s not going to have much effect on his behavior if he recognizes it as a toothless threat.

    3
  39. Kylopod says:

    @KM:

    Define “incapacitated”. Would someone in the middle of mental illness episode count?

    From what I understand, the drafters of the amendment specifically had in mind a scenario where JFK survives the shot wound but in a vegetative state.

    I can see a case for applying it to mental illness, but that’s a major slippery slope. First of all, what is a “mental illness episode”? Would depression count? A panic attack? That seems unduly broad. And while I do truly believe Trump is mentally ill, I’m uncomfortable with the idea of nonpsychiatrists making that call about someone who hasn’t been clinically diagnosed.

    Trump was always profoundly unfit for the office. That was obvious before he was even elected. He never should have been allowed anywhere near the presidency, yet enough Americans were deluded into thinking he was. None of that requires an assumption that Trump is mentally ill. Why can’t we just say that he’s a terrible person? The problem is that a lot of people use “mental illness” as a proxy for that (which is not only ignorant, but deeply insulting to people who suffer from mental illness) and are trying to use the 25th as a loophole to removing a president whose problems go way beyond mental illness.

    3
  40. gVOR08 says:

    The only way we’re going to get Trump impeached and convicted, or removed under the 25th, is if the rats decide to get a couple weeks head start on leaving the sinking ship. I would hope someone has already pulled what SECDEF Schlesinger did with Nixon before the end and told the chain of command to check with him before doing anything rash. Otherwise, what difference does it make if he hangs on for thirteen more days?

    Yesterday Pence and McConnell were doing their best imitations of reasonable. Even Lindsey Fwcking Graham. Within months they’ll all be releasing their books explaining how they were just playing along with Trump and without them moderating Trump’s impulses it would have been even worse. They created the conditions that allowed Trump, they enabled Trump, they can live with being embarrassed by Trump for thirteen more days.

    And when McConnell suggests to Schumer that the precedent is a 50-50 power sharing arrangement, I hope Schumer tells him, “Fwck comity.” Or at least that Moscow Mitch has to convincingly demonstrate good will and good faith before any deal is possible.

    3
  41. James Joyner says:

    @ptfe:

    I’m calling to demand impeachment of the whole brigade of Senate and House leaders of this insurrection

    Members of Congress are not subject to impeachment. There are other Constitutional means for removing Members but that’s not one of them.

    Further, it’s absurd to call challenging of the votes “insurrection.” Doing so without just cause is cynical, shameful, and disloyal. But it’s a legal process. Insurrection requires criminal violence.

    6
  42. gVOR08 says:

    @Kylopod:

    Trump was always profoundly unfit for the office.

    That. What do we know today that us Dirty Fucking Hippies didn’t know four years ago? Removing him now would just be theatre to support the rehabilitation of his enablers.

    Any arguments today that we shouldn’t prosecute Trump as soon as he’s out of office?

    2
  43. James Joyner says:

    @Andy:

    Process matters. Ends are not self-justifying. Using the 25th amendment really would be coup-like since it would consist of unelected officials remove the President’s authority for reasons other than incapacitation.

    I’m as big a stickler for process as they come but think it’s justified in this instance. He literally fomented a riot that took over the Capitol in an attempt to thwart an election result and needs to be ousted quickly to prevent further damage.

    Beyond that, the 25th Amendment is almost as high a bar as impeachment. It requires his hand-selected Vice President and a majority of his hand-selected cabinet to vote to take an incredibly bold step. And, if he objects, it then requires a majority of the United States Congress to go along with it.

    And, as with “insurrection” above, I object to calling actions specifically allowed in the Constitution a “coup.”

    8
  44. Joe says:

    @CSK:
    I can think of plenty of compelling political arguments against removal, but fear of his mob doesn’t even rate. If that’s a basis to avoid removal, we might as well give up now, bring the mob back into the Capitol and walk away.
    @Kylopod:

    I do think there’s a real possibility they went to him in private and told him that if he didn’t behave himself until the inauguration, they would invoke the 25th.

    I prefer the actual invocation of the 25th to cut him off from whatever last-second actions he might take, including attempts to pardon everyone in his family, administration or who invaded the Capitol yesterday.

    1
  45. de stijl says:

    @gVOR08:

    Do it anyway. Why the hell not?

    I did it to my Governor over her refusal to do jack-shit about Covid. I got a canned reply.

    It might make a marginal impact. Why the fuck not?

    If enough people are riled about an issue and contact their Reps/Sens/Govs to speak their mind it does have an impact.

    Marginal? Yes. But an impact still.

    It also makes you feel good about your level of civic engagement.

    1
  46. gVOR08 says:

    @James Joyner:

    Doing so without just cause is cynical, shameful, and disloyal.

    And if done in court, cause for disbarment. How about if done on the floor of Congress? Could we at least disbar the bastards? OK, rhetorical question. Lying in congress is well established precedent. But jeebuz, do we have to just roll over for this shit.

    2
  47. de stijl says:

    @gVOR08:

    I respect the Goldwater thesis, but it became weaponized by Gingrich.

  48. CSK says:

    @Joe:
    The people responsible for removing Trump might fear the mob. I know that doesn’t speak well of them.

  49. de stijl says:

    Members of congress can expelled per the constitution. 16 were during the Civil War.

    1
  50. Scott F. says:

    @HarvardLaw92:

    We’ll never get an impeached Trump, but a neutered Trump is good enough to get us through 20 January.

    I think your prescription for the next two weeks is the most realistic, but it is critical for us as a country to take the long view and that will require Trump being neutered forever. I don’t see how that is possible without impeachment or criminal conviction. The guy won’t stop. He will have to be stopped.

    6
  51. Joe says:

    @CSK:
    I am sorry if they fear them physically, but that’s why we have a Secret Service. I am more disappointed that they fear them politically, which I think is real cowardice.

    2
  52. CSK says:

    @Joe:
    I think that this time Trump may have pushed them too far. The man’s dangerous. They knew that–but they can admit it now.

    3
  53. Andy says:

    @James Joyner:

    He literally fomented a riot that took over the Capitol in an attempt to thwart an election result and needs to be ousted quickly to prevent further damage.

    Which has nothing to do with the 25th amendment or what it is intended to address. Handwaving that away in the name of expediency doesn’t make it legitimate.

    And I said “coup-like.” Just because something is a Constitutional process doesn’t automatically mean it can’t be misused. One common aspect of banana republics is doing just that – subverting the intent of process or authority for expedient ends.

    3
  54. ptfe says:

    @James Joyner: You’re right, it’s not impeachment, it’s censure and/or expulsion. But regardless, there need to be consequences.

    As for the “insurrection” in the Senate and House: the people who decided not to certify the votes based on known and provable lies that resulted in the obvious and terrible result of a putsch attempt to the door of the capitol – they incited insurrection, then continued doing it. They encouraged people to protest (yay! go for it, protest the shit out of DC, man…burn flags and block traffic and make yourself the biggest pain in the ass you’ve ever been), told them to use whatever means necessary to shut the process down, and fully interrupted government operations.

    This isn’t hard. These members are culpable. They spread these lies willingly, and they continued the farce after being shown to be heading a movement willing to partake in a violent coup attempt. Their votes were 100% symbolic, and they were symbolic of support of the mob literally ending “regular order” (the laughable process that these symbolic votes were to be made in favor or). They’re not being punished for their protest votes, they’re being punished for everything surrounding those protest votes.

    The GOP yelled “fire” in a crowded theater. The members who voted against certification advocated blocking the doors. We can’t keep lowering the bar with calls of “civility” and “normal order” – this has transcended those and become an attack on a whole branch of the government in support of conspiracies that swim with lizard people and pizza joint pedophile rings. As far as I’m concerned, they deserve nothing.

    7
  55. Michael Reynolds says:

    @Andy:
    There are several reports that it was Mike Pence who overrode Trump and allowed the use of National Guard troops.

    I don’t believe Pence had the legal authority to do that. Do you object to Pence’s action?

    7
  56. @Andy:

    Handwaving that away in the name of expediency doesn’t make it legitimate.

    Trump does not appear capable of governing.

    If this is accurate, then how is the current situation different from being extremely ill, in a coma, or otherwise incapable of governing? “The president’s final days in office will be lonely ones. Some stalwart aides and confidants — after years of enduring the crazy and trying to modulate the chaos — have given up trying to communicate with him, considering him mentally unreachable.” (via Axios)

    2
  57. Scott F. says:

    @Andy:

    Plus it would validate what Trump’s supporters have been saying all along about the deep state and conspiracies to have him removed from office by whatever means necessary.

    The Trumpists don’t need a plausible scenario to validate their deep state conspiracy fantasies, so decision should be made in the response to yesterday’s events that is designed to mitigate for how the response will be received by these people. Trump’s loyalists have a long track record of inventing from whole cloth the alternate reality they need to support their existing convictions.

    His loss in a highly structured, public, and transparent national election has been successfully twisted into a deep state action against their Savior King. They aren’t going to see impeachment as more legitimate than application of the 25th. If Ivanka stabbed The Donald in his sleep tonight, they would find a way to blame Antifa.

    7
  58. mattbernius says:

    @Steven L. Taylor:

    If this is accurate, then how is the current situation different from being extremely ill, in a coma, or otherwise incapable of governing?

    Simpler put, mental illness is still an illness. And if he actually believes in the face of all the facts that he actually won the election and his people’s unsubstantiated voter fraud claims (not to mention half the stuff he says), then he is incapable of discharging his duties due to severe mental and emotional illness.

    And note, his defenders are the ones that are advancing the theory that he cannot be held legally culpable for the GA Secretary of State call because POTUS deeply believes what he is saying.

    4
  59. de stijl says:

    @ptfe:

    What is on your shoulder in your avatar pic? Ostrich? Emu?

  60. de stijl says:

    Telediagnosis beyond the obvious NPD is a bad idea.

    NPD is not disqualifying.

    He has 13 days left.

    1
  61. JohnSF says:

    @Andy:
    I believe the phrase “The Constitution is not a suicide pact” has been used in the past.

    1
  62. ptfe says:

    @de stijl: She sometimes seems like an emu, but…my oldest daughter. Picture taken 9 years ago.

    1
  63. Michael Reynolds says:

    Clearly Trump should be removed by impeachment, or failing that, the 25th amendment. That’s the correct, decent, rational, patriotic thing to do.

    OTOH, Trump is actively destroying his own party. I kind of want to watch the completion of their humiliation. I want to see what the madman plans next, and I want to be able to shove it in Republican faces forever.

    By the way, anyone who says we could not have anticipated this is a liar or a fool. Liberals have anticipated exactly this for four years.

    For the record: Liberals were right. Liberals were 100% right. Conservatives were 100% wrong. Not the first time, but it’s useful to point that out. We were right.

    6
  64. reid says:

    @gVOR08: My congressperson is perfectly reasonable and intelligent, so I would say that that’s a waste of my time. Your case sounds like the opposite. You may think it’s a waste of time, but maybe thousands of calls will sink in just a little bit?

    1
  65. mattbernius says:

    Ellen Pao, McConnell’s wife, just resigned her Cabinet position. So the chances of any type of 25th amendment remedy just dropped quite a bit.

    Now the question of, if it is leverage, the threat is still enough to control Trump has yet to be seen.

    In the meantime, more Congress people are talking about impeachment again… so make those calls folks!

  66. Pylon says:

    I bet that cabinet members and Pence are just hoping to fence Trump in and stall or stymie any actions until Jan. 20.

  67. Michael Reynolds says:

    Regulars might be interested in this, from our old friend, Drew. Today at Dave Schuler’s blog.:

    This is supposedly an analysis blog. The commentary floating around is nauseating and painfully light. Unaddressed:

    Almost unreported, face recognition software has identified Antifa plants – false flaggers – among the protesters. Not surprising given that it was widely predicted, unless you are a slave to NPR, the Atlantic etc.

    The sudden discovery of “our hallowed Democratic principles” (pardon me while I vomit)…………..after spurious traitorous Russian collusion claims and the attendant charade investigations, the deep sixing of FBI malfeasance to protect the protected class, deep sixing of Democrat Party operatives malfeasance, protection of the deep state class. After the obvious election fraud.

    Telling someone you shouldn’t rush the Capitol building is kindergarten analysis. Understanding the deep seated anger at people who feel totally disenfranchised by a political/tech/media – read: self appointed elite – class who need not play by the rules is worthy of further discussion. This trend could be the beginning of the end.

    The facial recognition company cited loudly denies these claims. Not that that will matter to Drew, who has gone full Q-Anon.

    11
  68. An Interested Party says:

    I bet that cabinet members and Pence are just hoping to fence Trump in and stall or stymie any actions until Jan. 20.

    Perhaps we have already seen that with Pence’s order to bring in the National Guard…rather than any formal action, maybe his inner circle is just going to ignore the petulant child and let him play in the corner while they take care of any executive business…come to think it, they’ve probably already been operating that way for some time…

  69. Joe says:

    @mattbernius:
    Elaine Chao, but I take your point that her resignation does not bode well for a 25th Amendment solution.

  70. An Interested Party says:

    @Michael Reynolds: That unhinged rant is the perfect encapsulation of the excuse making being done by many on the right to justify yesterday’s events…you will see it all over the right side of the blogosphere…poor Drew…perhaps his financial empire has been destroyed and he’s now living in a cardboard box under some bridge…the sad soul…he’s probably just jealous that a lot of Antifa types can survive better under those conditions than he can…

    4
  71. Jen says:

    @mattbernius: I am fairly certain I read that Elaine Chao’s resignation becomes effective Monday. I do wonder if part of the delay is her availability in the event that transpires.

  72. Michael Reynolds says:

    @Jen:
    I had the same thought. So will Trump. A dollar says he fires her, effective immediately.

    1
  73. Michael Reynolds says:

    @An Interested Party:

    perhaps his financial empire has been destroyed and he’s now living in a cardboard box under some bridge

    I never believed any of that anyway. Drew likes to pretend he’s a swingin’ dick M&A expert, but I suspect he was never anything but the Fredo, the guy you don’t need around the office so you send him off to play golf with the clients.

    3
  74. ptfe says:

    Further, it’s absurd to call challenging of the votes “insurrection.” Doing so without just cause is cynical, shameful, and disloyal. But it’s a legal process. Insurrection requires criminal violence.

    Republicans just go on cheering the mob boss. They’ve contributed the labor and money. They’ve said every oblique word they can think of, walked right up to the line repeatedly, and raised their fists in solidarity. Do they have to explicitly call for the downfall of Congress? Take up the arms themselves? Inciting insurrection, rewarding insurrection – they are the insurrection.

    Don’t tell me it’s cynical to prosecute these goons. They know what they’re doing. If you want to reap the profits, be prepared to reap the consequences.

    2
  75. Thomm says:

    @Michael Reynolds: my response to those people since yesterday runs along the lines of, “no one outside of your circle of neo-confederates cares or believes what you cultists say anymore”. The spluttering anger is great to behold.

    3
  76. gVOR08 says:

    @Joe:

    Elaine Chao, but I take your point that her resignation does not bode well for a 25th Amendment solution.

    Perhaps true, assuming from facts not in evidence she might have any inclination to remove him. But her resignation sure makes it hard to impeach, or otherwise remove her. There have been stories of corruption. But the House should have threatened to investigate her to put pressure on her hubby, Moscow Mitch.

  77. CSK says:

    @Michael Reynolds:
    If it’s true that only only Trump has the authority to order out the Guard–there seem to be mixed opinions about this–then it means that Pence is Acting President and has been since yesterday.

    3
  78. mattbernius says:

    @Joe:

    Elaine Chao, but I take your point that her resignation does not bode well for a 25th Amendment solution.

    LOL. I am embarrassed to say that my combination of Vacation-Brain and WTF-Is-Happening-To-My-Country-Brain caused me to mix her name up with the former head of Reddit. Apologies to Ms Pao for that deeply unfair mix-up.

    1
  79. Jen says:

    The NYT is reporting that Trump is seriously considering pardoning himself, and according to his aides his recent polling of them on the topic is a sign he’s likely going to do so.

    From the article:

    Mr. Trump has shown signs that his level of interest in pardoning himself goes beyond idle musings. He has long maintained he has the power to pardon himself, and his polling of aides’ views is typically a sign that he is preparing to follow through on his aims. He has also become increasingly convinced that his perceived enemies will use the levers of law enforcement to target him after he leaves office.

    (Emphasis mine.)

    By pardoning himself, wouldn’t that then end up a challenge, entangling him in a case? I would think that if he goes that route, it has to be challenged I would think.

  80. drj says:

    @Jen:

    I would think that if he goes that route, it has to be challenged

    For sure. The implication otherwise is that presidents are entirely above the law as long as they are in office. That is prima facie absurd.

    2
  81. An Interested Party says:

    I never believed any of that anyway.

    Nor did most people around here, myself included…any anonymous person who would crow that loudly about being that successful would, of course, be full of bull$hit, as a real person in that position wouldn’t need to brag about it to strangers…

    2
  82. Kathy says:

    @Jen:
    @drj:

    There’s a legal matter that the same person cannot be judge and party at the same time. This is not something written down on the Constitution, as far as I know, but it’s backed by precedent (it has to be).

    Regardless, it would be a really good thing for the Supreme Court to rule unanimously that a person cannot pardon themselves, nor be pardoned in exchange for any kind of consideration. Meaning a future president, or for that matter governor, cannot make a deal with a VP, or Lieutenant Governor, to resign so the other can pardon them.

    One great big flaw with the Constitution, is that many of its writers were idealists.By itself, idealism is a fine thing. but it must be tempered by real-world experience and conditions. They were also largely honorable, some more than others. They did not conceive, nor guarded against, criminal abuse of the government by its own officials.

    The other great big flaw was the total blank on political parties and partisanship.

  83. CSK says:

    @Jen:
    Does. This. Jackass. Not. Know. That. He. Can’t. Pardon. Himself. From. State. Charges?

    3
  84. Jen says:

    @drj: Yep, and this piece that I just read by Asha Rangappa makes that point far more clearly than I’ve seen elsewhere.

    While I’m at it, here’s the original piece from the NYT that I apparently forgot to link to above.

  85. Jen says:

    @CSK: I’m genuinely baffled by that. Either no one has told him or he’s in a “but this covers everything” mindset. Or maybe he thinks those will be easier to pick off?

    I have no idea what the demented gerbil in his skull is doing or thinking.

    1
  86. CSK says:

    @Jen:
    He might indeed be thinking that the state charges would be easier to pick off. He might also mistakenly think he has friends in Manhattan who might help him wriggle off the hook, even though these are state charges, and the NY attorney general can’t wait to get her hands on him.

    He also doesn’t seem to realize that accepting a pardon is tantamount to acknowledging your guilt. Then again, he probably doesn’t care.

    As you say, who can tell what the demented gerbil is telling him.

  87. Andy says:

    @Michael Reynolds:

    There are several reports that it was Mike Pence who overrode Trump and allowed the use of National Guard troops.

    I don’t believe Pence had the legal authority to do that. Do you object to Pence’s action?

    I’m pretty sure those reports are incorrect. Those allegations are based on a dubious interpretation of a statement put out by the acting SECDEF, which was misquoted and spread over Twitter and then reported on without any confirmation.

    If it does turn out to be true that Pence or anyone else activated military forces without authorization, then yes, I would object to that action as my understanding is that the VP doesn’t have that authority. And if someone felt that the situation was so dire that the chain of command had to be circumvented, then those people have an obligation to fully disclose what they did, why they did it, and accept any consequences.

    Activating military forces for domestic use is not a trivial concern and no one should desire that this be done without the proper authority. This is an issue that military personnel are generally extremely sensitive about, and I’m very skeptical that Miley and the National Guard Bureau would accept an authorization that came from the VP.

    What often happens is something called posturing – military forces (in this case the DC Guard) are told to get ready and that an activation order is in the works. Commanders can then work to be ready and shorten the response time when the actual authorization order comes. This type of posturing happens all the time.

    @Steven L. Taylor:

    Trump does not appear capable of governing.

    I think the facts show that Trump is perfectly capable of carrying out the duties and functions of the office and make decisions.

    The problem is not about the inability to perform the duties of the Presidency (he’s been doing it for four years after all) – the problem is that we fundamentally disagree with how he carries out those duties and with the decisions he does make. Poor decisionmaking, venal egotism, and lack of character are not inability or incapacity.

    Here’s a story from my own experience: As a college student studying Russian history and language, I was on an exchange program to the USSR in the summer of 1991. I was there when officials of the Soviet government declared that Gorbachev was “incapacitated” and that power had transitioned because he was unable to carry out his duties.

    But of course, he wasn’t incapacitated – those who overthrew him merely disagreed – strongly- with his policies and thought expedient measures were necessary and justified to save the USSR.

    Twisting semantics to redefine inability into something else is not a road we should go down or toy with. It is not democratic. It is not representative. It is not consistent with established norms of governing.

    As of today, there is no existential threat and Trump is functionally able to do the duties of the office. Invoking the 25the amendment to remove him is completely unwarranted and would start us down a new slippery slope. Impeachment and removal and/or censure and waiting until the 20th is the proper course of action.

    2
  88. de stijl says:

    @ptfe:

    OMG I am so embarrassed!

    I am so sorry!

    Please pass along my very stupid remark to your kid. But more importantly that she is a very awesome young woman and will grab the world by its tail.

    Again, man, so effing sorry! In my defense, it was on my phone so the pic is super tiny.

    My best to your kiddo. You can call her “emu” if it amuses you. (It would me)

    2
  89. flat earth luddite says:

    James Joyner:

    To remove Trump and disqualify him from future office will require 17 Republicans to join in.

    Sorry, there aren’t that many spineless weasels there who magically found spines while hiding under their desks yesterday. Not gonna happen.

    @SKI:

    That said, I don’t expect Pence or a majority of Trump’s cabinet to trigger it but the bar isn’t anyone in Congress.

    As in my comment to James, insufficient spinal content. Not in your lifetime, much less mine.

    @HarvardLaw92:
    Along with you, waiting for a responsible adult to enter the WH.

    2
  90. de stijl says:

    @Michael Reynolds:

    Our little chrysanthemum hatched and emerged a predictable RW bossy braggart.

    Hopefully, next time is the charm.

    4
  91. JohnSF says:

    @Andy:
    The is adherence to constitutional propriety, and then there is, let us say, short-sightedness.
    It was constitutionally correct for Chancellor von Schleicher and the Wehrmacht to permit the NSDP to come to power in 1933.
    What he, and they should have done, however, was to act entirely illegally, and unconstitutionally, and have the Nazi leadership proscribed and executed.
    Murdered, if you will.
    And threaten the National Socialist SA streetfighters with the same fate if they did not back down.

    Similarly in Italy in 1922.

    Lawfulness is a good thing. But it is not the only thing.

  92. Andy says:

    @JohnSF:

    Trump has been in office for four years – his terms ends in 13 days.

    The argument that we must dispense with Constitutional propriety right now to use the 25th amendment as the means to an end (instead of, for example, waiting 13 days), requires a bit more explanation than yet more of the same dubious Nazi comparisons we’ve been hearing for years now.

    1
  93. Just nutha ignint cracker says:

    The important thing to remember is that while a bunch of lawless cosplay thugs spent the last 2 or 3 weeks fulminating about stolen elections and revolutions to set things right, 1oo% of Republicans in national office either stood by impotently or cheered them on. Will any of these empty suited lying sacks of sh!t have any consequences for their actions in 2022?

    Not fwking likely. 🙁

    3
  94. JohnSF says:

    @Andy:
    All right.
    If parallels with challenges from the Nazis are ruled prima facie inadmissible, how about Kerensky’s failure to have have Lenin summarily arrested and shot in 1917?
    Is that acceptable on the basis Mr Ulyanov was not a Nazi, so far as I am aware?

    Or how about “protective” breaches of law in situations short of a takeover of the state: Lincoln effective suspension of habeas corpus during the Civil War?
    I believe that’s where “The Constitution is not a suicide pact” stems from (or was it Jefferson?)
    I could delve for other points of crisis where the law was broken, to beneficial effect, or was unbroken, to ill-effect.
    I repeat: legality is a very, very, very good thing. It is not the only thing in every time, place and circumstance.

    Sure, Trump is out of office in 13 days.
    But, until then, legally, he is Commander in Chief.
    That may not worry you. It worries me.
    I rather doubt Mr Trump has your scruples.
    He may not even have mine, and lord knows they’re few enough.

    I very much hope you are correct, though, and I’m just being a bad tempered worry-wart with a bad taste in historical analogies, again.

    2
  95. al Ameda says:

    @Neil Hudelson:
    Re: Kevin McCarthy

    If various Twitter reports are true (big if, but I believe the Lincoln Project reported it as well), he was only forceful after his staff threatened to resign en masse. To paraphrase Dylan, apparently he needs a weatherman to tell him which way the wind blows.

    It’s amazing that McCarthy has risen to the position he has now. He’s a weather vane, he always tacks with the winds of power. Kevin and Devin Nunes are completely unprincipled.

    4
  96. reid says:

    @Andy: While I technically agree with much of what you say, it is also true that Trump is highly stressed, let’s say, and capable of anything. This is not just the last 13 days of a typical administration. Especially after yesterday, I am concerned about what he might do.

    Now, I still don’t know that I would say that invoking the 25th amendment is the right thing to do, but I wanted to point out that you’re being a bit glib by just saying wait it out.

    1
  97. JohnSF says:

    Thinking about the situation, and just seen one weird presser from McEnany referring to

    “a message on behalf of the entire White House… those …working in this building” and referring to a “orderly transfer of power”(!)

    I’m wondering if Pence, and some cabinet and staff, and the Republican caucuses (cauci? carcasses? LOL) leaders are telling Trump: shut up, sit down, behave, or we go 25th and back impeachment?

  98. Andy says:

    @JohnSF:

    If parallels with challenges from the Nazis are ruled prima facie inadmissible, how about Kerensky’s failure to have have Lenin summarily arrested and shot in 1917?

    I think the problem with your examples is hindsight bias. Yes, based on what we know now, someone should have killed Hitler and the Russian Provisional government should have taken the Bolsheviks more seriously. But we can only know that with the benefit of hindsight.

    Do we risk a Hitler or Lenin scenario if Trump isn’t removed immediately? I can’t think of any arguments or evidence that would support that. Trump – finally – agreed to a formal transfer of power today. I don’t see any evidence of doing something or planning something that rises to a level that might justify using the 25th amendment. Might happen, the future is hard to predict, but I don’t see it.

    That may not worry you. It worries me.

    And:
    @reid:

    Especially after yesterday, I am concerned about what he might do.

    Given those concerns, the relevant question, then, is whether one is worried enough to justify using the 25th amendment in a novel and preemptive way to get rid of him. For me, the answer is no, I’m not worried enough to justify such a drastic action. That doesn’t mean I’m not worried at all, but I think extraordinary actions require extraordinary justification and evidence and fear of what Trump might do is not evidence.

    1
  99. Just nutha ignint cracker says:

    @al Ameda:

    It’s amazing that McCarthy has risen to the position he has now. He’s a weather vane, he always tacks with the winds of power. Kevin and Devin Nunes are completely unprincipled.

    I think you may be misunderstanding what’s happening here. In my view, being completely unprincipled is how one rises to the position McCarthy holds. It shows he has the right stuff for leadership in the GOP.

    4
  100. JohnSF says:

    @Andy:
    Well, I wasn’t thinking in terms of historical parallels (none of those I’ve suggested fit).
    It’s more a mental exercise regarding ethical boundaries.

    If it can be stated that, if you knew, from hindsight (or perfect foresight) in
    {situation}A you avoid {bad outcomes} on scale B1 to Bn of badliness by {unethical action}x
    then if {bad outcome} is bad enough {unethical action}x is justified.

    Point being, that if you concede that in some circumstances {unethical action}x your naughty deed is justifiable and the rule against x is not absolute.

    In short: it’s a judgement call.

    “… fear of what Trump might do is not evidence”

    Correct.
    But in some cases by the time you get the absolute evidence of hindsight you’re sitting in the rubble eating rat kebab. If you’re lucky.

    In this situation, my hindsighted solution to the problems of Mssrs. Schicklgruber and Ulyanov would be excessive.
    But merely, arguably (and it IS arguable) bending the letter of the law in an emergencywith potentially catastrophic downside risks? Trivial.

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  101. gVOR08 says:

    @Kathy:

    There’s a legal matter that the same person cannot be judge and party at the same time. This is not something written down on the Constitution, as far as I know, but it’s backed by precedent (it has to be).

    AFAIK creating a logical impossibility is not regarded as a problem in “originalism”.

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  102. Gustopher says:

    @JohnSF:

    I repeat: legality is a very, very, very good thing. It is not the only thing in every time, place and circumstance.

    Would you support a coup? How about a bloodless coup where Trump is shoved into a bathroom and fed Big Macs for the next 13 days, and then hauled out and dumped on the curb outside 1600 Pennsylvania Avenue, disheveled, unshaven, and likely unwashed and covered in special sauce (lettuce, cheese…)?

  103. JohnSF says:

    @Gustopher:
    Not a coup; not needed and counterproductive.
    Massively so.
    You can stay within the limits of (arguable) law and have the equivalent effect by using 25th (and letting the Supremes pick over the legalities after the event) plus impeachment.

    But 25th may not be available absent the co-operation of the Vice-President; OTOH may not be needed if VP and sections of Cabinet and Congressional GOP are willing to threaten Trump with it unless he behaves.
    Question then is if such backroom dealings are going on, does impeachment get put on hold.
    That’s the sort of “behind the chair” dealings more common in our system than yours, usually.

    Coups etc are best left to an ultra-emergency; an “out of context problem”, e.g. a plurality of voters decide the NSDP are a fine bunch of fellows who deserve to govern.

  104. HarvardLaw92 says:

    @Andy:

    I’m not sure that constitutional propriety requires that the actors designated under the 25th, which we should remember also includes whatever group of persons Congress might decide to select in addition to the VP & cabinet, be handcuffed in a situation where the seated president is neither clinically insane nor physically incapacitated, but acts in such a manner as to endanger the country or wreck the functioning of government. To suggest that they are implies that the presidency is a monarchy above question and that the powers of the presidency include the power to do harm to the nation, which is ludicrous.

    I think perhaps this is best resolved by this observation: there are a few unspoken words which are implied in the text of the 25th Amendment, but not explicitly contained in it. Those would be “in their judgment”, thus rendering Section 4 as:

    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 [in their judgment] 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 Constitution grants to this block of persons the power to make that determination for themselves, acting in accordance with the oaths they swore upon assuming office.

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  105. HarvardLaw92 says:

    @Scott F.:

    I agree, 100 percent, but aside from the practical impossibility of compressing the impeachment process into 2 weeks, the sad reality is that the votes to convict and debar do not exist now in the Senate, and likely never will in the future. Once he’s out of office, the impetus to do so evaporates and it would be viewed instead as exacting political revenge. They will never do it.

  106. SKI says:

    @HarvardLaw92: This.

    Or put another way, “unable” is a political question that, if a majority of the Cabinet appointed by the President feels has been reached and both sides of Congress uphold, no Court is going to touch.

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  107. HarvardLaw92 says:

    @SKI:

    Indeed, and the amendment deliberately makes it exceptionally difficult to maintain the stripping of powers indefinitely, by requiring a super-majority of Congress to agree that its justifiable. Explicitly a political question which the court wouldn’t (or shouldn’t) get anywhere near.

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  108. Andy says:

    @JohnSF:

    Yeah, I think we’re on the same page. Definitely it’s a judgment call and judgment calls about potential future threats are inherently difficult.

  109. Andy says:

    @HarvardLaw92:

    I’m not sure that constitutional propriety requires that the actors designated under the 25th, which we should remember also includes whatever group of persons Congress might decide to select in addition to the VP & cabinet, be handcuffed in a situation where the seated president is neither clinically insane nor physically incapacitated, but acts in such a manner as to endanger the country or wreck the functioning of government.

    I agree that as a technical matter, the power to do that exists. But it’s clearly the case the amendment was never intended to be used in this way.

    Zooming out a bit I’d argue the main problem is the office of the Presidency has become too powerful. If a single official can wreck or endanger the country, then that official has too much authority.

  110. HarvardLaw92 says:

    @Andy:

    The amendment was intended to ensure the continuity of effective government. If handcuffing an unstable president who is actively trying to undermine that government doesn’t fall under that definition, then I’m honestly not sure what would. I agree with your second point 100 percent.