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different drummer lo res

Marching to a Different Drummer 

Short of dying in office, there are three ways an American president can cease to be one before his or her term is up:  1) Article I, Section 2-Impeachment, 2)  Amendment 25, Section 4-Declaration of Incapacity, and  3) Common Law-Resignation.  Only one of these—resignation—has ever actually occurred.  Each has grave consequences for the republic, but they are different.

1) ARTICLE I:   Impeachment

The most frequently discussed means of removing a president is impeachment.  The constitution provides for impeachment only in the case of “Treason, Bribery, of other high Crimes or Misdemeanors.”  Only the House of Representatives can bring an impeachment resolution, which requires a simple majority to pass.  Any member of the House can introduce an impeachment resolution, which is then referred to an ad hoc committee to work out the details.  More often in modern times the House Judiciary Committee itself initiates an impeachment resolution, and drafts recommendations for the floor of the House.  Until recently, the Attorney General could appoint an independent Special Prosecutor with the power to recommend impeachment directly to the House, but the legislation that empowered that was allowed to expire after the Clinton impeachment,  out of concern for the political effect of imbuing an individual who was not elected with such signal power.  If the House passes an impeachment resolution, then the Judiciary Committee recommends a slate of “managers” to prosecute the accused in the trial that follows.  Only upon conviction at this trial is the impeached person stripped of his office.

Impeachments are tried before the Senate.  When the defendant is the President of the United States, the Chief Justice of the Supreme Court presides and serves as judge.  A panel of “managers” appointed by the House on the recommendation of its Judiciary Committee prosecutes the case against the accused, and the entire Senate serves as a jury.  A two-thirds majority of senators present is necessary to convict. 

Once convicted, the offender is immediately removed from office.  In the case of the president, the vice president assumes the higher office, and the vice presidency remains vacant.  Ouster from office is the only sentence the Senate can confer.  Article I provides that “Judgement in Cases of Impeachment shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.”

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The Impeachment of Andrew Johnson

The provision for impeachment is intentionally Byzantine.  Over time it has become even more so, growing into equal parts constitutional law, politics, and pageantry. The framers did not intend for impeachment to be easy or routine.  In all of U.S. history only two presidents have been impeached by the House—Andrew Johnson (1861) and Bill Clinton (1988)—and neither was convicted in the Senate.  A bill of impeachment was introduced in the House against John Tyler in 1841, but it did not pass.  Richard Nixon resigned from office in 1974 with impeachment resolutions pending; his resignation rendered them moot.

During America’s first two centuries, the constitutional provision for impeaching a president was invoked only once—against Andrew Johnson–in the turbulent, polarized circumstances immediately following the Civil War.  In modern times, the country has seriously considered it three times in fewer than fifty rears—against Nixon, Clinton, and Trump.  It has never succeeded in removing a president from office.  Are we in danger of reducing impeachment to a routine political tool?

25th AMENDMENT:  Incapacity

Article II Section 1 of the Constitution provides for the succession of presidential power in the event of the death, resignation, or incapacity of the President:

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

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The wording of this clause, particularly as it relates to incapacity, introduced ambiguities that the founders did not foresee.  When William Henry Harrison died in office, his powers and duties devolved onto Vice President John Tyler.  Tyler took more, though.  He declared that not only the powers and duties, but also the office itself, was now his.  At the suggestion of Daniel Webster, he took the Presidential Oath of Office as prescribed by the Constitution.  Since then every vice president who has succeeded a fallen president has taken the oath, following the Tyler Precedent.

Despite criticism at the time, he claimed to be President, rather than merely Acting President.  This was an important distinction, because the constitution provided for only one president, who had to be elected.  If a Vice President succeeded a President with a temporary disability, the he became President and finished out the term.  The previous president was gone, even if he recovered from his incapacity.  The vice presidency remained vacant.

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Garfield’s deathbed

When President Garfield lingered after being shot, Vice President Arthur declined to assume the presidency while Garfield lived.  Similarly Vice President Marshall demurred when Woodrow Wilson was incapacitated, but not killed, by a stroke.  Neither wanted to bear the mantle of the Tyler Precedent while a president lived who might recover.

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In 1945, Franklin Roosevelt’s health began to rapidly decline, and Vice President Truman feared he might have to face a similar decision involving one of the nation’s most revered presidents.  A cerebral hemorrhage ended FDR’s life before Truman faced such a crisis.  He never forgot, though, and unsuccessfully pushed for a constitutional amendment on succession.  Eisenhower had two heart attacks while in office, but did not die.

In 1965, following the assassination of John Kennedy, Congress finally adopted the text of the 25th Amendment.  By May of 1967, it was ratified by 47 state legislatures.

Section 4 of the Amendment deals with the involuntary removal of a president who has become incapacitated in the judgement of his colleagues.  It reads:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

A simple majority of the Cabinet, or “such other body as Congress may by law provide” (although it never has), can empower the President pro tem of the Senate and the Speaker of the House, acting together, to relieve the President of his powers.  The President can resume the power simply by declaring himself fit to do so.  The Congress, by a two-thirds vote of both houses taken within 21 days, can take them way again.  It is not specified how often this cycle can be repeated.

This process does not remove the president from office.  Rather it transfers the powers and responsibilities of the office to the Vice President, who becomes Acting President, an office not defined in the constitution.  The door is left open for the President to reassume his duties if circumstances change.  Since he is still President, presumably his term limits clock continues to run.

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Was Reagan impaired in Office?

The Section 4 process has never been invoked. The Framers of the Amendment apparently had in mind a physical incapacity like Garfield’s wound or Wilson’s stroke, where it would be a useful tool.  Invoked against a vigorous but allegedly demented president, the results might be unpredictable.  It could conceivably paralyze the executive and legislative branches for the remainder of that president’s term in office.  The potential constitutional precedents of using this clause for alleged mental defects are terrifying,

3: EXTRACONSTITUTIONAL:  Resignation

The Constitution refers to the resignation of a president, but only one, Richard Nixon, has actually done it.  How that was engineered is instructive.

tricky dickNixon was a flawed human being, ambitious and bullying, with questionable ethics, but he had greatness in him  His first run for national office, as Eisenhower’s running mate, was tainted with allegations of corruption that dogged him throughout his subsequent career.  Along the way, he acquired the sobriquet “Tricky Dick”.

nixon chinaNixon’s achievements on the national level were real, however, and substantial, especially in foreign affairs.  As Vice President, his “Kitchen Debate” with Nikita Khrushchev is remembered more than half a century later. As President, he signed two substantial arms control treaties, and opened the era of “peaceful coexistence” with the USSR.  He supported Israel through the Yom Kippur War.  He opened trade and cultural exchanges with China and the Middle East, and weakened Soviet hegemony there.  He signed the Paris Accords that ended US involvement in the Viet Nam War and led to the suspension of the draft.

During his campaign for election to a second term, though, Nixon’s ethics came again to haunt him.  Agents of his campaign organization (which he called CRP but reporters named CREEP-the Committee to RE-Elect the President) was allegedly caught breaking into the opposing party’s headquarters in the Watergate Hotel to steal data and plant surveillance devices.  Nixon denied any knowledge of that activity, and it was never established whether he knew of the burglary beforehand.

Subsequent evidence clearly showed, though, that he had led a frantic effort to prevent any knowledge of the break-in from reaching the public.  Surreptitious recordings Nixon had made of his White House conversations, laced with obscenity (“[expletive deleted]”), showed a clearly unravelling president, bullying his aides into ethically questionable acts to protect his crumbling reputation.

Archibald Cox was appointed as Special Prosecutor to investigate the matter, only to be fired by Nixon when he got too close.  Attorney General Elliot Richardson, and his deputy William Ruckelshaus, then resigned out of conscience.  The event came to be known as the “Saturday Night Massacre.”

Sat Nite Massacre

A new Special Prosecutor was named.  Congressional  committees took up the cudgel and held a series of hearings, some televised and some closed.  Popular demonstrations erupted across the nation, where the word impeachment became increasingly common in chants and on placards.  The pressure on the president was immense.  “I have reason to suspect,” wrote Senator Barry Goldwater, “that all might not be well mentally in the White House.”

Nixon’s defense strategy was to act presidential, preferably on TV.  In one unfortunate effort, a haggard Nixon assured Americans that “I am not a crook!”  He was at his most presidential when seen in his role as a statesman.  He therefore embarked on a series of overseas trips, with a posse of reporters and photographers, to the Middle East and the USSR.  One result of all this jet travel was a case of phlebitis that sidelined him for weeks.

impeachment demonstratoMeanwhile, the investigation ground on.  Televised hearings and the publication of transcripts of the White House tapes whipped the public to frenzy.  Eventually the Judiciary Committee voted to send three articles of impeachment to the House floor, for 1) obstruction of justice, 2) abuse of power, and 3) contempt of Congress.  All were based on the cover-up.  Nixon’s direct involvement in the Watergate burglary has never been established.

resignation letterWith the votes in both the House and Senate trending strongly against him, Nixon knew the jig was up.  If he was impeached he would very likely be convicted, and his place in history would be to be the only president ever convicted after impeachment.  If he cut his losses by leaving office before impeachment, he might still preserve some of the positive legacy he had worked a lifetime to achieve.  It was a Corleonean offer that he could not refuse.  Nixon resigned.

nixon quit quoteA big advantage of the engineered resignation is that it does not directly set any constitutional precedents.  A disadvantage is that it is clumsy, has to be tailored to each situation, and is very susceptible to politics.  Finding that Godfather deal may be difficult, and a bold, principled office-holder may be resistant to the approach.

The Situation We Are In Now

Impeachment has been tried but never worked.  Declaring incapacity has never been attempted, and a vigorous, feisty executive does not seem like the person on which to try out this process for he first time.  Inducing a resignation seems like the path most likely to succeed and least likely to result in harmful precedent. 

Consider President Trump.  He has not dedicated his life to statesmanship or politics, and his sense of legacy is not invested in his public works.  He can walk away without feeling diminished, blaming others for obstructing his attempts.

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He has dedicated his life to wealth and power, and to Trump as a brand.  Threatening that would surely give him pause. 

Suppose the emoluments clause were invoked to require him to actually divest all interest in, and knowledge of the operations of, the Trump Organization; to require it to change its name to something that does not exploit the presidential connection; and to cease all contact with the principals of the Organization, whether family or not.  Rather than submit to such rigorous ethics and constitutional constraints, would he resign? Perhaps.

Keep Eyes on the Prize

The biggest risk in all this talk of impeachment is that it will distract us from the real task at hand.  Our country went astray before Trump was elected.  In fact, he was elected in large part because voters saw his lack of political experience as an asset, in sharp contrast to pro politicians who opposed him in the primaries, and his dynastic opponent in the general election, whom many voters felt belonged to a professional political elite that was responsible for the morass that Washington has become.  We overlooked his obvious shortcomings and underestimated the hucksterism that he, to his credit, made no effort to conceal, because we wanted to change Washington and correct the social inequities that plutocracy was producing.  We believed him when he said he was going to “drain the swamp.”  We voted for something new, and we got it, but it turned out to be something very different from what we longed for.

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“This is more work than in my previous life. I thought it would be easier.” –Donald Trump

Freeing the White House from its current occupant will not free the country from the coalition of ideologues, starry-eyes hopefuls, foreign operatives, and nincompoops who put him there.  Replacement of the president is only a tool in the central task of rebuilding America as a nation of principle, vision and hope.  To do this we must begin respecting one another again, listening and compromising for the benefit of majority and minority alike, and forsaking the tyranny of a narrow but iron-willed majority.  We must learn not just to tolerate, not just to respect, but to revere our diversity for the richness and strength it bestows on us.  We must wrest power from the plutocrats and restore it to an inclusive electorate. We must build bridges that bring us together, not walls that keep us apart.  We must embrace and reinvigorate Lincoln’s ideal, that “government of the people, by the people, and for the people, shall not perish from the earth.

Compared to that real task lying before us, simply removing a president from office seems like a walk in the park.