Trump and the Remaining Days: What Are Our Options?
After two months during which President Trump has unsuccessfully contested the last presidential election, the January 6 storming of the U.S. Capitol building by his supporters has raised new questions about what to expect in the remaining few days.
As citizens and members of Congress contemplate the possibility that Trump might issue further pardons to friends and family members (and even himself), sow further division, and provide opportunities for foreign governments to take advantage of the situation, there are at least six scenarios, each of which has its own pros and cons, and which together suggest that politics often consists in making hard choices.
Do Nothing. The first scenario is to do nothing and just ride out the term to which Trump was duly elected. Although this does not deliver as forceful a message about the perils of inciting violence, Trump may be sufficiently chastened by the criticism he has received not to stir further insurrection or chaos in his remaining days.
Launch a second impeachment. It takes a majority of the U.S. House of Representatives to bring charges of “treason, bribery, or other high crimes and misdemeanors” and a two-thirds vote in the U.S. Senate to convict. As in the case of Trump’s earlier impeachment, it is unlikely that such a move could secure the necessary two-thirds vote to convict in the Senate, and it would likely stir additional partisan rancor. It seems unlikely that the Senate would have enough time to grant the president a fair trial, which could set a bad precedent for future impeachments. If the president were convicted, he could be barred from holding further offices, which might appeal both to Democrats and to Republican presidential aspirants. Although some have argued that individuals can be impeached after they have left office, the only example in U.S. history did not result in a conviction. Moreover, one would think that a newly elected president and congress might have more important things to do.
Invoke the 25th Amendment. If Vice President Pence and a majority of the cabinet affirm that President Trump is no longer capable of fulfilling his duties, Mike Pence would become acting president for the remainder of the term. The president could contest the finding, but unless Congress voted to reject the action, Pence would remain acting president through the end of the term. It is unclear whether Pence and a majority of the ever-diminishing cabinet are willing to take this step, although it is possible they might do so to avoid another impeachment attempt.
Censure the President. A congressional censure would not remove or imprison the president, and, although it seems unlikely, it could technically be repudiated (as a censure of Andrew Jackson once was) by a subsequent Congress.
Seek to bar the president from reelection. Section 3 of the 14th Amendment, which was adopted in the aftermath of the Civil War, provides that Congress can bar individuals who have “engaged in insurrection or rebellion” against the U.S. or “given aid or comfort to the enemies thereof” from civil or military offices, but making such a determination would be very politically divisive.
Presidential Resignation. The President could simply follow the example of President Richard M. Nixon and resign, although he seems unlikely to do so, especially absent strong pressure from fellow Republicans. If he doubts his right to pardon himself (an issue that has never been resolved), he might resign in hopes that Pence would pardon him. But there would be no guarantee that he would, and Gerald R. Ford’s pardon of Richard M. Nixon cost Ford politically and was extremely politically divisive.
Whatever happens, our leaders should act thoughtfully with the nation’s best interests in mind. Our country has successfully weathered many storms, and whatever happens in the next few days, we will have a new president on January 20.
Dr. John R. Vile is a Professor of Political Science at Middle Tennessee State University and the author of A Companion to the U.S. Constitution and Its Amendments, which will soon be out in a 7th edition.
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