Yeomans Work

Rise Up, Republicans

October 16, 2017

Since President Trump’s election, it has been painfully obvious that the means prescribed by the Constitution for removing an unfit president – impeachment and the Twenty-Fifth Amendment – are inadequate.

It should be difficult to oust a chief executive, but in our toxic political climate it has become virtually impossible. That was not the original intent.

Alexander Hamilton stated in Federalist Paper 65 that impeachment was a political remedy that could be used to remove a president for a violation of the “public trust.” Impeachment, however, was entrusted to Congress on the assumption that the nation would have a functional Congress composed of serious people who would put country before partisan interest. Plainly, Trump has crossed into impeachable territory, but the Constitution’s original enforcement mechanism – requiring a majority of the House and two-thirds of the Senate – has failed.

Likewise, it seems clear that Trump’s unfitness could be the basis for removal pursuant to the Twenty-Fifth Amendment. The amendment requires that the Vice President and a majority of the Cabinet notify Congress that the President is unable to serve. The President may challenge the determination by demanding a vote of Congress. Two-thirds of each chamber must vote to uphold the President’s removal. Realistically, removal through this process is even less likely than through impeachment. Consider the likelihood of Ben Carson, Wilbur Ross, Betsy DeVos, or Rick Perry dumping Trump. Now that Trump knows about the amendment, he’ll pick his future Cabinet nominees accordingly. And then, recall that Mike Pence is the Vice President, perhaps the least likely man in America to turn on Trump. Finally, unlike impeachment, the amendment requires two-thirds majorities in each chamber, not just the Senate.

Democrats can win the House in 2018, but they cannot approach the two-thirds needed in the Senate. Only a massive Republican uprising can oust Trump. But Republicans in Congress, after watching Trump’s hostile takeover of their party, embraced two notions. First, they formed a pact to accept and remain silent about Trump’s unfitness so long as he would sign their legislation, particularly tax cuts and the repeal of the Affordable Care Act. It was a welcome bonus that Trump agreed to send a steady stream of ultraconservative judicial nominees to the Senate.

Second, Republicans assumed – based on a stew of factors – that they could not reject Trump without jeopardizing their seats. Citizens United and its progeny unleashed a torrent of big money that was able to fuel and ride the Tea Party wave as it threatened primary challenges to Republican members of Congress. Most Republican members of the House come from safe (often gerrymandered) districts in which their biggest threat comes from an intra-party primary challenge rather than from the opposite party in the general election. Republican senators from deep red states face the same dynamic. The most conservative voters dominate Republican primaries and they overwhelmingly support Trump.

Steve Bannon reinforced this danger from the right by announcing that he will support primary challenges to Senators who stray from Trump values. According to Bannon, that includes every Republican running in 2018, except Ted Cruz. That may sound like good news for Democrats, since Republican primary voters may nominate some extreme candidates and throw away the advantage of incumbency. The danger is that more states will send to the Senate candidates deeply committed to Trumpism. The victory of Roy Moore, the twice-removed, gun-toting, rule-of-law-rejecting former Chief Justice of Alabama, over the more establishment incumbent Luther Strange fits that mold, barring a surprise upset by Democrat Doug Jones.

Republicans in Congress have demonstrated impressive partisan discipline and stunning irresponsibility in avoiding criticism of Trump. Regardless the venal craziness of the tweet, or the racism, misogyny, or xenophobia of the statement or policy, few have spoken up. Even in the face of direct attacks from Trump, until recently only John McCain showed the gumption to respond. McConnell, Ryan and others have refused to hit back. It has become a Washington parlor game to predict who will eventually crack and speak out. The pressure has grown in recent weeks amid talk of nuclear volleying with North Korea, failure in Puerto Rico, Cabinet corruption, staff shake-ups, and tales of chaos and dark moods in the White House.

The pressure has been exacerbated by the failure of the legislative agenda. Trump has worked hard to deflect all blame on to the Republican leadership in Congress. Republican funders are said to be losing patience. In response, Republican legislators are panicking. Mitch McConnell, for example, feeling pressure to push through more Trump judges, announced the death of the blue slip (the Senate Judiciary Committee practice of not considering a judicial nomination until both home state senators have returned a slip that is literally blue), which only remained dead until Chairman Grassley reminded him that the decision rested with the chair of the committee, not the Majority Leader.

Finally, the last week saw cracks in the Republican wall of silence. Sen. Bob Corker of Tennessee, liberated by his decision not to seek reelection, gave an alarming interview to The New York Times, warning that Trump was leading the country toward World War III. Trump predictably reacted with a series of schoolyard-quality tweets demeaning Corker, who has made it clear that he is not backing down. And Sen. Ben Sasse (R-Neb.) tweet-challenged Trump’s frightening call to pull the license of NBC (stickler alert: networks don’t have licenses, but this is after all a Trump tweet). This is not quite a chorus, but it beats silence.

Two big questions remain. Will the chorus grow and will any of the singers translate their concerns into votes against Trump. Until now, Corker and Sasse have voted consistently with Trump. Odds are that they and the overwhelming majority of the Republican caucus will continue to do so unless Trump’s popularity with the Republican base erodes substantially.

That means the constitutional mechanisms for Trump’s removal will not be triggered any time soon, barring devastating revelations. The most likely cure for Trump is to deliver a counter-message that can win Congressional majorities. A Democratic House elected in 2018 can engage in meaningful oversight and investigations, and ensure that Trump’s legislative agenda fails. A Democratic Senate can do the same and prevent Trump from stocking courts with unqualified extremists. Meanwhile, the Mueller and Congressional investigations into Russian interference in the election must continue, both because we need to know the full extent of the Russian attack on our democracy and hold the culprits accountable, and because you never know when a devastating revelation might surface.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.