Mitch McConnell can, but maybe we don’t want to convict Donald Trump. Not guilty by reason of…

A lot of the talking heads on my television news programs are handicapping the upcoming impeachment trial of Donald Trump. The prevailing comments seem to be that the Republican Senators are going to try to avoid taking any position because they fear what Trump and the Trump Party may do to them. They’re expressing incredulity that seventeen Republican Senators could possibly vote to convict.

But what seems to be missing in these analyses are, first, that this is (or at least ought to be) a trial in which the Senators, sitting as jurors, really ought to be deciding on their vote (verdict) based on the evidence which will be presented at the trial (I was pleased to hear Senator Toomey say just that today on CNN). We didn’t get a lot of that in the last three presidential impeachment trials, and we probably won’t see much of it this time around, but just think how refreshing it would be.

The other thing that is missing is the potential for Mitch McConnell to grow a backbone. McConnell is a smart politician, who has ruled his faction in the Senate for quite a while. He appears to be the leader of the entire Republican party today (except for Trump and his insanity). The time appears to be ripe for him to wrest control of the Republican name back, and to marginalize the aberration that is the Trump Party. By convicting former President Trump of inciting an insurrection, and by barring him from ever holding office again, the Republicans in the Senate would be clearly telling their party members that the insanity is done; that it is time to go back to being members of a government, rather than a bullying, rampaging mob of divisive haters.

Donald Trump managed to grab the White House, and drew out of the woodwork a gang of passionate thugs, but even Mitch McConnell, in his more lucid moments, must realize that Donald Trump’s Presidency was bad for the country. Now, McConnell has a few days to spread the word among his forty-nine Senate colleagues that they can retake the party, that they can once again look like mature adults in the government.

Of course, it wouldn’t be so simple as casting the vote (and convincing a few other Senators to do the same). If McConnell and other rational Republicans really want to regain control of the runaway train the Trump has turned their party into, it’s going to take effort. They’re going to have to speak about what they’re doing and why. They’re going to have to educate their party members, pointing out the lies and misdirection Trump spews as naturally as breathing. In short, they’re going to have to work to get there, and it won’t be easy. But nothing worth doing ever is easy.

Mind you, while I’m expressing hope that Mitch McConnell can work for the good of the country, I really don’t repose that much trust in him. Especially not after watching his actions of the last few years. In 2016, he said the Senate could not consider a Supreme Court nominee during an election year. In 2020, he said it was fine to do so, since the same party controlled the Senate and the White House. He has shown himself to be completely untrustworthy (so I am continually amazed that anyone is willing to negotiate with him). He is apparently not a Senator serving the nation, but a political opportunist seeking out any avenue to accumulate more power for himself and his cronies. In other words, I don’t hold out much hope that he will lead his party to convict Trump and blossom as a high-minded collection of political leaders. But I can continue to hope.

I wrote the above a few days ago, but then let it sit before posting it. I still think it’s valid reasoning, and that if they want to remain relevant, the Republican Party will have to repudiate the Trump Party and Donald Trump. But I’ve also started wondering if conviction in the Senate is necessary for that, or if it even is the best possible outcome.

Consider this alternative: what if the United States Senate, sitting as the jury in the impeachment trial of now-former-President Donald Trump, determines he is not guilty by reason of mental defect or diminished capacity (or some other such synonym)? Indeed, that may be why the House managers asked him to testify. If they can get Donald Trump on the stand to publicly state that he still believes he won the election, despite all evidence to the contrary, it becomes easier to find that he is out of touch with reality. Casting his actions in that light puts the onus on Congress to strengthen the 25th Amendment, and on future Cabinets to keep a better watch on their Presidents. It gives the Republican Senators—fearful of fringe party nut-jobs—an out of not voting to convict. And it means that, even without a separate finding that Donald Trump is ineligible to hold office in the future, he’s done.

Don’t get me wrong: I think the evidence is overwhelming that he did incite a mob to insurrection that resulted in damage, death, and the disruption of the normal functioning of the United States government. The impeachment was completely warranted, because he was the President when it was voted. But now we need to temper our need for vengeance with our need to try to bring his followers back into the fold of decent human beings. Convicting Donald Trump, at this point, will not change any minds, will not convince the rest of the Trump Party that he is wrong. But recognizing his diminished capacities might be a step toward allowing them an out from their own descents into madness.

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Invoking the 25th

It’s a shame that it took the horrors of yesterday to wake so many of our leaders to the need to invoke the fourth clause of the 25th Amendment. I called for it last summer, but my voice is not so loud. Today, however, the 25th is everywhere, so here’s a brief discussion of what it is, where it came from, and what it can do and has done.

Up until 1967, the Constitution provided a means of filling a vacancy in the presidency—the vice president would succeed to the office—but no way to fill a vacancy in the vice presidency. If the vice president died in office, or succeeded to the presidency, there would be no vice president until the next election chose one and he was inaugurated the following March (the date of inauguration was changed to January by the 20th Amendment, starting in 1937).

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Franklin Delano Roosevelt

But in the 1960s, after Franklin Roosevelt’s death in office in 1945, and John Kennedy’s assassination in 1963, there was enough public will to find a way to fill that role. This was especially true after Kennedy’s death, because the next two in line—the Speaker of the House and the president pro tempore of the Senate—were both considered to be less than completely healthy.

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John Fitzgerald Kennedy

The 25th Amendment was written to enable a vice presidential vacancy to be filled (that’s the second section: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”).

At the same time, there was recognition of the fact that a president might not be dead, but still unable to execute the duties of his office. This was brought to light when Dwight Eisenhower suffered a serious heart attack that put him out of commission for a while. Eisenhower and Vice President Richard Nixon had an agreement that Nixon would take over if necessary, but that agreement wasn’t enshrined in law.

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Woodrow Wilson

And we’re pretty sure now that earlier, in 1919, Woodrow Wilson’s stroke left him completely unable to do the job. But nothing was done, except that his wife was most probably the acting president for about six months.

Thus, the third section was written, enabling the President to say “Hey, I’m having trouble doing the job. I’m going to step aside temporarily and let the Vice President act in my stead.”

The fourth section is the other side of that coin: if the President is unable to make that determination (for instance, if he’s in a coma), the Vice President—acting in concert with a majority of the Cabinet—can say “The President is unable to do the job. For the good of the country, the Vice President will serve as acting President until the President is once again able.”

The third section has been invoked several times in recent decades, but not in any terribly dramatic fashion:

DA-SC-90-03096
Ronald W. Reagan

On July 12, 1985, President Ronald Reagan underwent a colonoscopy and was diagnosed with bowel cancer. He elected to have the lesion removed immediately. On July 13, Reagan signed a letter before going under general anesthesia, and Vice President George H.W. Bush was acting president from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a followup letter declaring himself able to resume his duties.

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George H.W. Bush

On June 29, 2002, President George W. Bush invoked Section 3 and temporarily transferred his powers to Vice President Dick Cheney before undergoing a colonoscopy, which began at 7:09 a.m. Bush awoke about forty minutes later but did not resume his presidential powers until 9:24 a.m., to ensure any aftereffects had cleared.

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George W. Bush

On July 21, 2007, Bush again invoked Section 3 before another colonoscopy. Cheney was acting president from 7:16 a.m. to 9:21 a.m.

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Dick Cheney

In all three cases, the acting President didn’t do anything other than carry out his usual duties.

Perhaps the clearest instance when section 4 should have been invoked was on March 30, 1981, when Reagan was shot and rushed into emergency surgery without time to sign a letter under section 3. Vice President Bush did not assume the presidential powers and duties as acting president because he was rushed back to Washington via airplane, and Reagan was out of surgery by the time Bush landed in Washington.

Sections 3 and 4 get far more play in fiction. They were notable in a two-episode arc of The West Wing, and as a poorly executed subplot in the movie Air Force One.

By the way, there’s also the first section of the Amendment, which clarifies something that had been less-than-clear

Clause Six of Article II of the Constitution says that if the President dies or is unable “to discharge the powers and duties” of the presidency, “the same shall devolve on the Vice President.” That left open the question of whether a succeeding Vice President became the President, or was merely acting as President. John Tyler, the first Vice President to be faced with that situation, insisted that he was the President, and through force of will, made that determination stick. But still, it wasn’t entirely clear until the 25th Amendment was adopted. The first section reads “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

Section 3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 25th Amendment was adopted by the 89th Congress in 1965, submitted to the states on July 6 of that year, and was adopted (ratified by 38 states) on February 10, 1967. To date, it has been ratified by 47 states (all but Georgia, North Dakota, and South Carolina).

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Failed Wartime President Trump

On March 18, referring to the then-brand new Covid-19 pandemic just sweeping the country and the planet, President Donald Trump called himself “a wartime president” (https://www.npr.org/2020/03/22/819672681/trump-tries-on-the-mantle-of-wartime-president).

It’s nearly nine months later. Lame duck President Donald Trump has given up doing his job as President (though he’s still rampaging all over the place claiming he won re-election). Should we hang the mantle (shackle?) of “wartime president” around his neck? As of December 2, 2020, the Centers for Disease Control and Prevention (CDC) reports 249,570 Americans have died of Covid-19 (https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm).

For comparison, the Department of Veterans Affairs lists Battle Deaths in America’s Wars (https://www.va.gov/opa/publications/factsheets/fs_americas_wars.pdf):
World War II (1941-45): 291,557
Civil War (1861-65): 214,938 (Union and Confederate combined)
World War I (1917-18): 53,402
Vietnam War (1964-75): 47,434
Korean War (1950-53): 33,739
American Revolution (1775-83): 4,435
War of 1812 (1812-15): 2,260
Mexican War (1846-48): 1,733
Indian Wars (1817-98): 1,000
Spanish-American War (1898-1902): 385
Desert Shield/Desert Storm (1990-91): 148

In other words, of all American wars, more soldiers died on the field of battle only in World War II than people have died in nine months of Covid-19. More people have died this year of Covid-19 than our number of war dead in every other war in which the United States was involved. More of us have died in 2020 of this virus than the number of American soldiers who died on the field of battle in all the wars we fought, combined, except World War II and the Civil War.

My point? My point is: yes, he’s leaving office in seven weeks, but he’s not doing his job now. He seems to be unable to carry out the duties of President. The Vice President and the Cabinet should activate section 4 of the 25th Amendment, and try to show a little leadership, a little class, on their way out the door; try to help us survive the next few months, which CDC Director Dr. Robert Redfield said will be among “the most difficult in the public health history of this nation.”

I spent the last twelve years, since the publication of my book, The Presidential Book of Lists, trying to avoid one word in the subtitle. Every time someone looked at that book, they saw the one word, “worst,” and asked me who the worst President was. And every time, I would demur, avoid answering, and turn the conversation to another point. No longer. We now have a clear “winner”: Donald John Trump is clearly the worst President in American history.