In an utterly shocking* turn of events that no one could have possibly predicted,* the least competent man to ever hold the office of President has managed to fail completely at legislating, attempted to transform an executive order into a king’s writ, lashed out at the judiciary when that failed, and sunk into a quagmire where there is now not insubstantial (albeit still circumstantial) evidence that the President of the United States is, in fact, a traitor. All in less than a month.
This is not normal. Not only is this not normal, this is an entirely new degree of paralysis, as every day brings some new nightmare to deal with from DC. Whether or not you agree with the Republicans’ legislative agenda, legislation is not happening because everyone — Democrat and Republican alike — is scrambling from crisis to crisis, from scandal to scandal.
It is difficult to see how Trump can last four years. His relationship with the press is adversarial, proving that Trump never learned not to piss off whosoever wields the pen. The intelligence community is already in revolt against him; Democrats are poised to make huge House gains in 2018, likely on a platform of impeachment; Congressional Republicans are, at this point, barely holding the floodwaters bearing the foul swamp miasma of corruption back from engulfing them all. All in less than a month.
The question now is what will happen.
The Republican Dilemma
Right now, House Republicans are in a bit of a pickle. Trump has lost so much credibility so fast that there are already voices suggesting impeachment. But he still has a small cadre of loyal supporters, and this cadre usually controls who wins House district primaries.
This is untenable. What this means is that, by not acting, House Republicans — especially in the more suburban districts — risk losing the general to a groundswell of anti-Trump support. But to act would mean alienating the Trumpet base, who would swiftly and mercilessly primary them. Their calculation is perhaps, then, that the best window for removal is in the six-month window between primaries and the general in the middle of 2018; the hope would then be that after they secure primary nomination, they can defang their opponents. It would be shrewd.
It would also involve waiting through roughly 500 more days (and may I remind you, we’ve gone from “inauguration” to “probably a traitor” in 20-some-odd days) of utter insanity before it happened. And in any event, leaders such as Ryan and Chaffetz seem to have decided the best path forward is party before country, letting the White House’s ethics quagmire fester.
It’s hard to see a path forward for House Republicans. Their gerrymander is strong — they may be trusting in it — but public lividness at Trump’s unpresidential shenanigans is also strong, stronger possibly than in Katrina’s aftermath, when Democrats took control of Congress and lame-ducked W.
The Senate is different. There aren’t many Republican seats up in the Senate in 2018 (but plenty of Democrat ones), meaning that by the time most Republican Senators have to campaign again, the Trump scar will be a distant memory, already receding into the domain of history books and language, where “Donald Trump” will likely replace “Benedict Arnold” as a connotation of cold treachery.
The dichotomy can be seen in real time. The Senate has already moved to begin investigating Trump’s Russian connections (although they have not yet appointed a special prosecutor), while Chaffetz is moving investigations on anything associated with the White House forward at the slowest pace he reckons he can get away with. Chaffetz, I may add, is a Utah Republican with a very high risk of getting primaried by someone who’s more willing to impeach.
Sooner or later, something’s got to give. Trump will have have a short Presidency and leave, at minimum, in disgrace. The questions are: how short? what deal will ensure his removal? and what will happen after?
The Trumpian Constitutional Crisis
While the man is a walking constitutional crisis, pretty much constantly in violation of the emoluments clause his Russian entanglements notwithstanding, perhaps the biggest Constitutional crisis of all will happen once he leaves. And that is the crisis of: how do we prevent this from ever happening again?
Whether it’s Pence or Ryan or Pelosi (heaven help us if he lasts that long) who replaces him, this will be the very first item on the 45th President’s legislative agenda. The new Secretary of State will, of course, be tasked with fixing the international damage the Trump administration caused, but the domestic agenda comes in second after locking madmen out of the White House forevermore.
Make no mistake, this will be a Constitutional crisis. Among other things, we can already see
- Trump should never have gotten to a position where he could be nominated as President;
- Impeachment may not be a strong enough tool for dealing with executive treason; and
- Secondary methods of Presidential removal may also need to exist.
A New Amendment
Dealing with the first is pretty clear, and should be bipartisan. It’s the territory of a Constitutional amendment, and one that can be worded with one or two unambiguous sentences. Something like
Amendment 28. The President of the United States must have previously held at least one elected office, at the state or federal level, prior to running for President.
An Amendment so simply worded, in the immediate wake of such an unambiguous disaster as Trump, should pass the 2/3rds majorities and reach the 3/4 ratification mark within a single legislative session. This would be, after all, little more than actual politicians ensuring that an actual politician gets the highest political office in the land.
Dealing with an Incompetent President, or a Vegetable One
The second and third issues are of opposite import. The second is meant to ensure that a made double agent in elected office (including the Presidency) can be removed in a nonpartisan way, with a minimum of fuss; the third, a form of “no confidence” removal if the President becomes demonstrably unfit for office, also through nonpartisan processes.
I recently saw a proposal for dealing with the third that I quite like: impaneling living former Presidents [who have, in light of Trump, served full terms]** to determine if the current President is fit to serve, should a crisis of personal faculties arise. This should be an inherently bipartisan body, meaning that any decision they agree to should be above partisan politics. Because the body will always be small, and the decision being made is of grave import to the nation, I would also add that the decision to remove must be unanimous.
Of course, this also leaves open the question of who can call such a panel to convene. I would personally give this tool to the states, where a simple majority of state governors to convene the panel acts as a vote of no confidence such that possibilities of removal need to be investigated. (And of course, the unanimity requirement functions as a check, such that state governors can’t abuse the tool to simply get rid of a President of the opposite party.)
Handling Elected Traitors
This leaves the third and last issue to resolve: clearly leaving dealing with Presidential treason, like other high crimes and misdemeanors, to an inherently political process such as impeachment, is not enough. Treason is not like perjury or even conspiracy. Both Richard Nixon and Bill Clinton always had the nation’s best interests at heart, even if their methods were suspect.
By contrast, treason is a betrayal of public trust, using the trust so granted to advance some other sovereign state’s best interest. It isn’t just putting your own best interests over your nation’s, as Trump does every time he flagrantly violates the emoluments clause; it’s using entrusted information to advance somebody else’s agenda (as Flynn did with Russia).
An elected official committing treason, then, is not just betraying his party; he’s betraying his position and his country. Impeachment is inherently a political tool, and the latter two betrayals transcend politics altogether and need to be handled as such. The judiciary, then, must be the one handed the tool of removal over treason.
Being accused of treason would be no different than needing to stand trial over murder or fraud. But there are two added wrinkles: (1) an elected official standing trial for treason would do so before the highest court matching his jurisdiction, that is, a state governor standing trial for treason does so before his state’s Supreme Court; a Congressman or the President standing trial for treason does so before the Supreme Court of the United States, and (2) a treason conviction not only entails criminal punishment for the elected official, but the liquidation of staff subject to rules choosing a successor. That is, the Speaker of the House, not the Vice President, automatically becomes President if the previous President is removed via treason conviction.
(The idea here is that if treason occurred at the very top, then the whole staff is implicated in aiding and abetting it. Trying to figure out who knew what would take far too long and would almost certainly delay the VP’s confirmation, leading to a vacant Presidency until the whole legal nightmare gets sorted out.)
Other Procedural Issues
These three issues look to be the biggies coming out of the Trump debacle. The President needs to be qualified to hold the office in some way, and there needs to be more ways to remove a sitting President should the worst come to pass. My take on the latter two is that the states can be entrusted with a secondary, broad-ranging removal process, and that the judiciary needs to be entrusted with a secondary, narrowly-focused removal process, one that is triggered by one crime and one crime only because that crime is too severe to let people play political football with.
These are, of course, not the only procedural issues people have pointed out. The Electoral College has clearly been subverted in terms of purpose. Gerrymandering has institutionalized minority rule in the House. A certain successful former state governor can’t run for President because he wasn’t born in the US. The two-party system as a whole is failing to provide meaningful political discourse and coalition-building between the whole panoply of ideologies, left to right.
While the Trump administration’s fallout will most certainly precipitate at least one Constitutional amendment and a broader Constitutional crisis, however, I’m not holding my breath on how much of it will be addressed. Part of the robustness of our system is that there are many avenues to effecting lasting change, such that if one is gummed up or refusing to do its job, there is another. Both gerrymandering and the Electoral College can be resolved in processes outside that of Constitutional amendments.
Unfortunately, it does not seem Mr. Schwarzenegger will ever get his (richly deserved) chance to run for President. Nor does it appear we will see a third party rise in our lifetimes, short of one party or the other collapsing. Maybe there are some dreams we dare dream for too deep.
** I am adding this section.