Calls by the top Democrats in Congress — House Speaker Nancy Pelosi of California and Senate Minority Leader Chuck Schumer of New York — to remove President Trump from office by invoking the 25th Amendment demonstrate their profound ignorance of the Constitution.
In blaming Trump for “inciting” the criminal acts of those who attacked the U.S. Capitol on Wednesday, the two Democrats are demanding that Vice President Mike Pence and a majority of the Cabinet declare that Trump is “unable” to perform the duties of the presidency.
Fox News reported Thursday night that sources inside the vice president’s office said Pence will reject any calls to oust Trump before the term of both men ends at noon Jan. 20.
Pelosi, Schumer and others who are calling for Trump to be thrown of office before the end of his term are misrepresenting the meaning and intent of the 25th Amendment. They are peddling a constitutional canard.
The 25th Amendment provides for the president’s removal and replacement in the event that he is “unable to discharge the powers and duties of his office.”
Although incapacity is not defined, the legislative history summarized by the Congressional Research Service makes it abundantly evident that the framers of the amendment envisioned a chief executive who was stricken by a debilitating stroke, heart attack, or bodily injury (such as in an attempted assassination) and was physically or mentally disabled as a direct consequence.
The authors of the amendment, which was proposed by Congress and ratified by the states after the assassination of President John F. Kennedy in 1963, made it clear that it was not intended to facilitate the removal of an unpopular or failed president, or for any other political purpose. Concerns about character are dramatically different than mental incapacity.
Sen. Birch Bayh, D-Ind., who was the architect of the amendment, stated that the word “unable” meant “an impairment of the president’s faculties” such that he is “unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office.”
On the House side, the principal framer was Rep. Richard Poff, R-Va. He cited “some physical ailment or sudden accident” rendering a president “unconscious or paralyzed and therefore unable to make or to communicate the decision to relinquish the powers of his office.”
Against this legislative backdrop, the 25th Amendment has no application to the circumstances that unfolded Wednesday. Pelosi and Schumer don’t care about that. In a shameless ploy, they seek to bastardize a constitutional standard for partisan gain.
The objective of the Democratic leaders is to score political points by further demonizing Trump during the last two weeks of his presidency. Their previous efforts ended in failure. Trump-Russia collusion proved to be a hoax. The attempt to remove the president by impeachment was a predictable bust.
Many Democrats and some in the mainstream media accuse Trump of inciting violence and an insurrection against the United States on Wednesday. Yet, the record (and videotape) of the president’s remarks to supporters who rallied in Washington does not back this up in any criminal sense.
As he has done so often since the Nov. 3 election, Trump argued to the gathered crowd that widespread fraud had “stolen” the presidency from him. Both state and federal courts have consistently rejected this claim. Nonetheless, Trump told his supporters “we will never concede.”
The president then extolled the crowd to march to the Capitol where objections to the Electoral College vote count were being presented by Republican House members and senators (mimicking what Democrats did in 2004).
Nowhere in the president’s remarks did he advocate acts of violence or destruction of property. He did not direct the protesters to launch an assault on the Capitol building, breach security, riot, and engage in seditious conduct.
Under the law, encouraging a demonstration of grievances is not the same thing as inciting criminal acts. For the latter to attach, the language of the speaker must be clear, obvious and unequivocal.
Make no mistake: the lawless display of violence inside the Capitol was appalling and disgraceful. Those who smashed windows and doors, looted and vandalized federal property, threatened lawmakers, and assaulted police officers are nothing more than common criminals. They should be arrested, prosecuted, convicted and imprisoned. It will not be forgotten that five people — including a Capitol Police officer — lost their lives.
Regardless of his intentions, President Trump’s involvement in Wednesday’s tragic and sad spectacle is not without responsibility or recrimination. It will serve as an indelible stain on his legacy. He seems incapable of moving beyond the first two stages of grief — denial and anger. He may never be able to reach the fifth stage of acceptance, although he acknowledged in a video released Thursday night that “a new administration will be inaugurated Jan. 20th.”
Yes, there are serious questions about election integrity and voting improprieties that need to be addressed by both Congress and individual state legislatures. This must be done soon if Americans are to have any confidence in their representative democracy.
But the kind of major fraud that would reverse the election outcome never materialized in the way the president’s legal team promised, at least to the satisfaction of dozens of judges who considered the many challenges.
Trump’s failure to gracefully, if grudgingly, concede defeat constitutes a stunning act of political self-immolation. He will likely be remembered not for his considerable accomplishments in a single term, but how he left office embittered by an ignominious obsession.
It did not have to end this way.