Existing Law May Not Solve Presidential Crisis

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Existing Law May Not Solve Presidential Crisis

"Dumping Trump and ensuring that no one like him ever accedes to the presidency again will require the promotion of an alternative to oligarchic corporate capitalism."

First and foremost, only the most cockeyed optimists could believe that Vice President Mike Pence would lead what would amount to a de facto palace coup against Trump by initiating the procedures outlined in Section 4. Nor, as an aside, would the nation be better off by having Pence—a religious fanatic and radical homophobe—take charge of the federal government.

"First and foremost, only the most cockeyed optimists could believe that Vice President Mike Pence would lead what would amount to a de facto palace coup against Trump by initiating the procedures outlined in Section 4. Nor, as an aside, would the nation be better off by having Pence—a religious fanatic and radical homophobe—take charge of the federal government." (Photo: Ted Eytan/flickr/cc)

For those of you looking for a legal avenue to cut short the tenure of the 45th president of the United States—our very own real-life madman in the high tower—I have some good news, and some bad.

Starting with the upside, your ranks are growing. According to a Public Policy Polling survey conducted in late September, 48 percent of American voters want Trump impeached. A Harvard-Harris Poll conducted a month earlier pegged support for impeachment at 43 percent.

You can also take comfort in the fact that you’re right to regard Trump as a unique threat to democratic values and institutions, not to mention world peace. From his almost-daily diatribes against the “fake news” media to his Twitter taunting of Kim Jong Un, he’s proved as much over the past nine months.

Although I’m about to drop some bad news as well, let me add first that I’m with you. I have been a “never Trumper” ever since the trash-talking real estate mogul descended an escalator at his midtown Manhattan headquarters in June 2015 to announce his bid for the presidency, pledge to “make America great again” and denounce undocumented Mexican migrants as criminals, rapists and purveyors of drugs.

Throughout the long and bizarre campaign that followed, I warned in multiple Truthdig pieces of the grave dangers a Trump presidency would pose in such areas of law and policy as freedom of the press, birthright citizenship, immigration enforcement and travel bans, climate change, abortion rights and future appointments to the Supreme Court.

I also was among the first to sound the alarm about Trump’s emotional stability, in a column titled “The Psychopathology of Donald Trump,” published in July 2016. The subject is now the focus of a best-selling book, “The Dangerous Case of Donald Trump,” featuring essays by 27 distinguished mental health experts.

The second and final paragraph of Section 4 instructs, in so many words, that the president can attempt to override a declaration of inability by notifying the Senate and House leadership that no such inability exists. Thereafter, the vice president, with the support of a majority of the Cabinet, or “the other body” referred to in the first paragraph, can contest the president’s override. To resolve the conflict and place the vice president in charge, a two-thirds vote of both houses of Congress is required to confirm that the president is, in fact, “unable to discharge the powers and duties of his office.”

The procedures outlined in Section 4 have never been invoked, and it is unlikely that they will be used against Trump. The amendment simply contains too many moving parts and depends on too many external contingencies to make it a viable option.

First and foremost, only the most cockeyed optimists could believe that Vice President Mike Pence would lead what would amount to a de facto palace coup against Trump by initiating the procedures outlined in Section 4. Nor, as an aside, would the nation be better off by having Pence—a religious fanatic and radical homophobe—take charge of the federal government.

Second, it is doubtful that Congress, acting without Pence, would enact legislation creating another body that would make a finding of presidential incapacity. To be sure, two bills are pending in the House to do just that. Maryland Democrat Jamie Raskin introduced one to establish an oversight commission on presidential capacity, staffed largely by physicians and psychiatrists. Earl Blumenauer, D-Ore., authored the other bill, which would create an oversight body composed of all former living presidents and vice presidents.

Neither measure, however, has shown any sign of progressing to a committee hearing. Even assuming, improbably, that either could win approval by both the Senate and the House and become law, they would have to be passed by a two-thirds supermajority in each chamber to withstand an inevitable presidential veto.

This does not mean, however, that it is pointless to agitate for impeachment or call for the removal of Trump via the 25th Amendment, or that it is a waste of time to discuss the possibility that Mueller and his colleagues will conclude they can prove an obstruction case against the president. Rather, it means that progressives and never-Trumpers should view the avenues for creating an early Trump exit not just as ends in themselves, but as organizing tools that can draw increasing numbers of Americans into a wider political effort to build a new progressive movement aimed at sweeping the GOP (and eventually, center-right Democrats) from power.

In the final analysis, and most importantly, dumping Trump and ensuring that no one like him ever accedes to the presidency again will require the promotion of an alternative to oligarchic corporate capitalism. As I have written in this column before:

Every major movement of social and political transformation, in addition to championing specific short-term reforms, has been animated by higher principles promising both solidarity and liberation. The American Revolution was moved by the demand for “life, liberty and the pursuit of happiness.” The French version was driven by the ideals of “liberté, égalité, fraternité.” The civil rights movement was propelled by Martin Luther King Jr.’s “dream” of racial harmony and justice. Even Obama’s 2008 presidential run was keyed by a single word of inspiration: “Hope.”

What, then, in this critical hour, is our shared vision of the future? I don’t pretend to have the answers, except to say that in the broadest terms it will be communitarian, diverse, inclusive, respectful of democratic institutions and the environment, and welcoming toward individual freedoms. It will not, if it is to succeed, call for a restoration of the hierarchical neoliberalism of the recent past.

The outcome is uncertain, which only makes the undertaking all the more urgent.

Bill Blum

Bill Blum

Bill Blum is a former administrative law judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam and a contributing writer for California Lawyer Magazine. His non-fiction work has appeared in a wide variety of publications, ranging from The Nation and The Progressive to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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