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After the Capitol riot, members of Congress began seriously taking up the prospect of President Donald Trump’s removal from office—even with just a week left to go—but diverged on the exact method for making this happen. Some members wanted to impeach the president; others wanted to somehow encourage Vice President Mike Pence to take over for his boss. This week, they tried both options at once: drawing up impeachment articles while also introducing a resolution to encourage Pence to declare Trump unfit for office, which is being debated today. Additional options have been put on the table: Republican House Minority Leader Kevin McCarthy said his caucus might back censure for Trump, while President-elect Joe Biden’s team was said to be exploring whether impeachment could proceed in half-day increments, giving senators time to legislate during the trial. On Tuesday’s episode of What Next, I spoke with Brian Kalt, a professor at the Michigan State University College of Law, about the various tools the government has at its hands to punish Trump and which path forward might be the most ideal one. An excerpt of our conversation, edited and condensed for clarity, is below.
Brian Kalt: The 25th Amendment is really not up to Congress in any way, so asking for this resolution to be passed, requesting the vice president to invoke it, it’s kind of an awkward thing to do. It’s his call. It’s the Cabinet’s call. It’s not Congress’ call.
Mary Harris: If the system worked the way it should, it would be the other way around—the vice president and a majority of the Cabinet would be the ones who come to Congress and plead their case.
They’re supposed to declare that the president is unable to discharge the powers and duties of his office.
Seems kind of vague.
Well, it is. And it was not designed to be restricted to incapacitation, comas, things like that. But that was what [the amendment’s drafters] were mainly thinking about. That was the situation where the process they set up was designed to function smoothly. So if the president’s in a coma, we can immediately transfer power to the vice president so we don’t have nobody at the helm. It’s not supposed to be for presidents who are doing bad things. It’s supposed to be for presidents who can’t do anything.
I look at what Congress is doing, introducing this resolution about the 25th Amendment and saying that that’s the remedy they would like to see implemented—I see it as a delaying tactic where everyone’s sort of looking around and saying “not it.”
I see it as them looking at a situation that they think is untenable and finding whatever tool can fix that. And the 25th Amendment, whatever it’s intended for, the reality is if they invoke it, the problem—worry over what Trump will do with presidential power in the next nine days—is solved. This would be the only way to prevent him from doing things with his power as commander in chief, doing things with his pardon power.
You’ve talked about how the 25th Amendment is actually biased to let the president keep power, because once the vice president triggers all this, there are just four days when he’s in charge, if the president wants the power back.
Well, if the vice president and Cabinet respond to a declaration by the president that he’s OK by saying, “No, you’re not,” then it goes to Congress. And Congress has 21 days to debate the question. During that wait, the vice president remains in charge, but you need two-thirds of the House and two-thirds of the Senate to vote against the president in that 21-day period to keep him out of power. So in the middle of the term, if the president says he’s OK, he takes his power back unless the vice president and the Cabinet and two-thirds of the House and two-thirds of the Senate say he’s not. That’s a very high bar.
Americans don’t really have a collective idea of how the 25th Amendment would work in practice because it’s never been done before. And all of our ideas about how to do it come from television, where it’s often used to wrest power from a president with enemies.
Any show about a TV president, eventually they come around to a 25th Amendment story: The president is just fine and the vice president and the Cabinet engage in something like a coup. And because Section 4 [which allows the vice president to assume the presidency after a joint written declaration by the VP and some executive offices] has never been used in real life, that’s people’s view of it.
If people see it as a way to get rid of a bad president, then it becomes a real problem, one that the designers of the amendment had hoped to avoid. So it really does need to be a pretty severe crisis situation to warrant running that risk of watering down what it’s meant to be used for. Putting the vice president and Cabinet at the front line was one way they did that. They said, look, if this is going to be triggered, it’s not going to be by people who might have already wanted him gone.
Speaker Nancy Pelosi has said that if the vice president doesn’t move forward with the 25th Amendment, she’ll plan to proceed with another impeachment. My main question is how long everything needs to take, because the last impeachment, of course, took months.
Part of the issue is, because of how long it would take, it would prevent Congress from doing a lot of other things that need doing. It looks like they’re leaning toward impeaching before he has left office because that doesn’t take as long.
And that just involves the House.
That just involves the House. And it involves facts that they could investigate a little bit. But I think they know enough that a majority is already willing to go forward.
And then, because the Senate won’t do it before the 20th, there’s no rush. So they’re talking about maybe giving the new administration 100 days to get things done and then holding the trial. Because when they hold the trial, it’s going to take a while and it’s going to suck all the oxygen out of the room.
So much of the conversation about what we should do now is about symbolism. I’ve heard people say that if you impeach, it sends this symbol that no future leader can do what this president did without being punished. But there are real, practical reasons why an impeachment over a censure would make sense. Like, what are the chances of having something like financial support for a former president withdrawn, or having him banned from holding office again?
Disqualification from future office is the one reason why an impeachment after Trump’s left office might actually amount to something, because that’s the only punishment the Constitution allows besides removal for an impeachment conviction. As far as his pension and post-presidential benefits are concerned, the current law specifies that these benefits are available to former presidents, and it defines former presidents as those whose terms ended for reasons other than them being impeached and removed. In other words, unless he’s convicted in an impeachment trial while he’s still in office, he still gets his pension. Convicting him after he left office under current law would not strip him of any of those benefits.
So no matter what, he’s going to get that money.
Unless they change the law. They can always do that. There would be some constitutional issues with doing that retroactively, but I think they could.