In a parliamentary system, this kind of stampede would force a new election. Weirdly, the departure of Cabinet members at this point might actually preclude any formal handoff of power between now and Inauguration Day. Over the last hour, reports have emerged that Transportation Secretary Elaine Chao will resign immediately, and that her reasons for departure are “specifically yesterday,” as Jonathan Swan reports:
Transportation Secretary Elaine Chao is resigning, per two officials. Cites yesterday’s events as reason in email to DOT colleagues, per draft. First Cabinet secretary to resign. Chao is married to Mitch McConnell. More TK.
— Josh Dawsey (@jdawsey1) January 7, 2021
Swan says his source confirms Dawsey’s report. The Washington Post has a more detailed report from Dawsey up now:
Transportation Secretary Elaine Chao will resign from her post, making her the first Trump administration Cabinet member to leave after the president incited a mob that attacked the U.S. Capitol on Wednesday. …
She told others of her decision early Thursday afternoon, according to two individuals familiar with her plans who spoke on the condition of anonymity to disclose the matter.
Chao has now tweeted out her resignation letter, which explicitly cites the riot and the role that Donald Trump and the rally played in it:
It has been the honor of a lifetime to serve the U.S. Department of Transportation. pic.twitter.com/rFxPsBoh6t
— Sec. Elaine Chao (@SecElaineChao) January 7, 2021
Interestingly, her hubby had a potentially related thought in a statement released at nearly the same time about the riot yesterday. In an e-mailed statement to the press, Mitch McConnell demanded a review of the security and law enforcement agencies and their response to yesterday’s riot in the capitol. However, McConnell said that while their performance left something to be desired, look who McConnell cites for the “ultimate blame,” emphasis mine:
“With that said, yesterday represented a massive failure of institutions, protocols, and planning that are supposed to protect the first branch of our federal government. A painstaking investigation and thorough review must now take place and significant changes must follow. Initial bipartisan discussions have already begun among committees of oversight and Congressional Leadership.
“The ultimate blame for yesterday lies with the unhinged criminals who broke down doors, trampled our nation’s flag, fought with law enforcement, and tried to disrupt our democracy, and with those who incited them. But this fact does not and will not preclude our addressing the shocking failures in the Capitol’s security posture and protocols.”
To quote Val Kilmer in two successive posts: “Why, whatever do you mean?” And again, it should be more whomever than whatever.
Chao becomes the highest ranking administration officer to resign over the rally-riot yesterday. This may have one significant side effect, however. Members of Congress have pushed Vice President Mike Pence to rally the Cabinet to certify Donald Trump as incapacitated under the 25th Amendment and take over control of the executive. If Cabinet officials keep resigning, there may not be a quorum available for that option even if Pence wants to avail himself of it.
However, it might not matter whether the officials are expressly part of the Cabinet. All that matters, at least by the specific text of the 25th Amendment, is that they be the “principal officers of the executive departments.” In Chao’s absence, for instance, that would fit the description of the most senior deputy, who would become acting secretary in her absence.
Even so, attempting to use the 25th Amendment here is a big mistake, both in tone and in process. If Trump has to be removed for malfeasance, that’s not Pence’s job nor is it a legitimate exercise of the 25th Amendment. As Andy McCarthy explains, that is Congress’ job, and impeachment is the proper process — but he thinks that’s not well advised either:
The 25th Amendment is not a substitute for impeachment. It is a necessary process to deal with a specific kind of dire situation, namely, when the president is by some medical emergency rendered unable to perform the duties of the presidency. It is meant for such situations as Woodrow Wilson’s stroke or presidential assassinations which, as our history illustrates, sometimes require life-saving emergency surgery or tragically find stricken presidents lingering a while before expiring.
The amendment is not applicable to a situation in which the president is alleged to be unfit for reasons of character, or due to the commission of political offenses that may rise to the level of high crimes and misdemeanors. …
To endorse invocation of the 25th Amendment in this context would not only be wrong, it would create a hazardous precedent. Trump is physically healthy and functioning mentally. What we are witnessing is an elucidation of profound character flaws, not a mental breakdown.
But with thirteen days to go, and Trump now conceding at least that he’ll leave when the time comes, McCarthy thinks more harm than good will come of an impeachment and removal attempt:
The conduct we’ve witnessed is impeachable, and I will not contend otherwise. Still, there are 13 days to go in this presidential term. Again, trying to be practical, it would be difficult at this point to impeach a president with anything approaching the legitimate due process we would want as a precedent for future impeachments. I won’t say it would be impossible. As Justice Robert Jackson sagely observed, the Constitution is not a suicide pact. If it were necessary to national security to cashier a president forthwith, it could be done. But it should not be done in the absence of clear necessity.
That doesn’t mean that Trump’s appointees have to sit around for the next thirteen days if they find him intolerable. But one does have to wonder whether it might be better for them to stick around at this point while publicly protesting what happened yesterday in order to promote as much stability as possible for the next fortnight. If they hadn’t figured out his intolerability before yesterday, they could at least ride out two week’s notice for the sake of the country.