Yuri Gripas/Abaca/Sipa USA via AP
The Trump Cabinet mommy and daddy will not be walking through the door to save the day.
The Democratic leadership in the House and Senate has issued an ultimatum to Vice President Mike Pence and the Cabinet (at least what remains of it after the resignation of Transportation Secretary Elaine Chao, Mitch McConnell’s wife): invoke the 25th Amendment and remove the president, or they will begin the impeachment process.
Well, “will” is a strong word. Speaker Nancy Pelosi said that Congress “may” proceed to impeach. Schumer said that Congress “should” reconvene to impeach, but of course until the swearing in of Joe Biden and Kamala Harris on January 20, he will not be the majority leader with the power to do so. And that’s too late by definition.
The idea that impeachment should be conditional on the use of the 25th Amendment process is absurd; the figures who would have to invoke that process are massively conflicted. First of all, they are Trump loyalists, at least if they survived in the Cabinet this long. Mike Pence may have broken with Trump, but that’s far from clear for the rest of the Cabinet. More important, the president holds the pardon power and has shown every willingness to use it, including on himself. The legality of self-pardoning has never been tested in court, obviously, but Trump can legally dangle pardons for those who would make the choice to throw him out of office, with no check on that power.
Each day of the final 13 that Trump remains in power gives him the ability to run this cycle again, or worse.
The State Department fired a mid-level employee for daring to say that Trump was unfit to remain in office. There is no deus ex machina. The Cabinet members signed on with an insurrectionist president and they’re ready to ride out the string. Anyone with a shred of principle (or at least the capability to try to save face), like Chao, is resigning, removing themselves from the 25th Amendment decision. Schumer said that he and Nancy Pelosi tried to get Pence on the phone this afternoon; they waited on hold for 25 minutes and were finally told he wouldn't talk. The Trump Cabinet mommy and daddy will not be walking through the door to save the day.
The only remedy that can actually do the job here is impeachment and removal. Republicans in Congress at least have to face voters, in theory, every now and again. The House will impeach on a party-line vote, or close to it. Only seven seditionist Republican senators tried to overturn the election in public on Wednesday, and presuming all Democrats vote to remove, only 19 of the remaining 44 would need to vote to get Trump out of office. They can do so, or live with their shame forever. Actually they are part of an Insurrection Party as long as they remain Republicans. Blocking the removal of the inciter-in-chief will cement that in the public consciousness.
The need to remove, needless to say, is urgent. Every crime perpetrated in Washington yesterday is a federal crime. Many U.S. attorneys, all appointed by Trump, are lining up to say they will prosecute seditionists, but Trump can end that immediately through the pardon power. Everyone in the Capitol yesterday can be absolved, if they were ever at risk at all. Moreover, each day of the final 13 that Trump remains in power gives him the ability to run this cycle again, or worse. And impeachment would bar him from any federal office in the future, which is an appropriate outcome for someone explicitly vowing to overthrow the government.
If the House impeaches—which they could likely accomplish on a voice vote any time Pelosi decides to call the question—per the impeachment rules they would send a message to the secretary of the Senate, who would then inform the House that they can accept them. That requires a resolution and eventual action from the presiding officer, and the Senate is adjourned until the inauguration. If articles of impeachment are transmitted to the Senate, “it always has been assumed that the Senate must [act upon them],” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. “But there is no way to require it.”
Of course, this is precisely the kind of pressure that should be put on Mitch McConnell in this situation. He’s welcome to give that majority leader post to Sen. Schumer early if he can’t hack it or he doesn’t want to be seen as covering for insurrectionists. With great power comes great responsibility.
A few congressional Democrats have said that we should just wait until the inauguration and turn the page. This is an active threat situation. Millions of people have been told, falsely, that an election was stolen and that a new government would destroy everything they hold dear. They are following that logic to its conclusion, and one riot with, thus far, no consequences will only embolden them. We have seen this happen throughout history, often tragically. Swift punishment rather than placating those who have distinguished themselves as sworn enemies is the proper course of action.
Democrats in Congress, particularly its younger members, have taken steps to demand removal. But they have been tentative and halting and less than unequivocal. The party has not met the challenge of Republican delegitimizing tactics for decades. If leaders can’t act quickly in a national crisis, then you can add this to the mountain of exposures of our public-health system, our economy, and our democracy that we have discovered in the past few years.
Richard Kreitner’s recent book Break It Up is the fundamental text for this period. We have been divided since the founding, with secession movements simmering at a low level for years. Since 1865, they have been mostly denied oxygen and met with enough response to subdue them. Impeachment and removal, making this conduct unacceptable or letting those who defend it be marked with that defense forever, is part of what will dampen, but not eliminate, this latest spasm.
