I don’t know University of Colorado law professor Paul Campos personally, but I’m picturing him as having been one of those kids who got on Santa’s naughty list by trying to sneak a look at his presents early because he couldn’t wait for Christmas morning. One might think that with less than a month to wait until the inauguration of Joe Biden, most of the nation’s Trump Derangement Syndrome sufferers would be content to take a few victory laps and spend their time picking out what they’re going to wear for the virtual inaugural balls. But Campos isn’t having any of it. He wants Donald Trump gone immediately, or close to it. With that in mind, he pitches a new plan in an op-ed for New York Magazine this week. He would like Vice President Pence to remove the President from office via the 25th Amendment. And he’d like him to do it on Sunday. Why not today? We’ll get to that in a moment.
More than 50 years ago, the framers of the 25th Amendment to the Constitution foresaw the possibility of a president’s behavior becoming so unstable that it would prove necessary to have some constitutional mechanism to remove him immediately from office. Section Four of that amendment provides a process for doing so: If the vice-president and the majority of the Cabinet decide that, for whatever reason, the president has become unfit to carry out the powers and duties of the office and they transmit a letter to Congress to that effect, then the vice-president becomes the acting president and remains so unless and until Congress refuses to allow that transfer of power to stand.
Legal scholars who have studied the drafting and adoption of the 25th Amendment recognize that its framers intentionally drafted it to allow Section Four to be used to address a wide range of potential situations — very much including the sorts of circumstances in which the nation finds itself today. While it is true that the amendment was created to deal with non-controversial instances of presidential unfitness, such as a president falling into a coma or being kidnapped, Section Four was made part of the amendment to deal with controversial cases as well: specifically with instances where the president’s unfitness to hold office was contested by the president himself.
I realize that this isn’t the first time you’ve heard this particular fantasy tune being sung by liberals. It’s been a favorite item on their wish list since before Donald Trump was even sworn in. Under this fever-dream scenario, the Vice President would convince a majority of the members of the cabinet to go along with his plan and deliver a letter to the House of Representatives declaring the President to be unfit for office. He would then take over as acting president for the rest of Trump’s term.
In this case, the author is basing his claim of unfitness on allegations that President Trump has been talking about invoking martial law to overturn the election results. This would apparently constitute proof of mental imbalance or something in Campos’ eyes. Frankly, I don’t doubt that the subject has come up, but I don’t know any serious person who thinks that Donald Trump would actually attempt it.
But why Sunday? Why not immediately? Campos has clearly thought through this grand vision carefully. You see, the specifics of Section 4 of the 25th Amendment would require a two-thirds vote in both chambers of Congress to allow Mike Pence to stay on as acting president indefinitely. But a simple majority vote in either chamber would allow Pence to stick around for 25 days while everything gets sorted out. Sunday is December 27th, which is 25 days before the inauguration.
Crazy? Crazy like a fox, maybe.
This scheme is absolutely perfect with a couple of minor exceptions. First of all, Mike Pence has been the President’s most ardent and active foot soldier of anyone for this entire term. His loyalty is beyond question. If he was going to figuratively stick a knife in the boss’s back he’d have done it long before now. Also, does anyone honestly think that Mike Pence wants to finish his long and successful political career by becoming a Trivial Pursuit bonus question answer after serving the shortest term of any president under the most bizarre of circumstances? (He would beat William Henry Harrison by six days under this scenario.)
Even if you could imagine Pence going along with this, you’d still need a majority of the cabinet to sign off on the plan. And the cabinet is full of people that Donald Trump personally elevated to their current positions. Particularly given the fervent loyalty of Trump’s base around the country, they aren’t about to line up to play Roman senators to Pence’s Brutus.
If I could offer any advice to Paul Campos at this point it would be to turn the television off from cable news for a while. Go take a walk in the brisk winter weather, particularly if you have a dog. Mix yourself a nice cup of hot chocolate and consider asking your doctor to write you a quick prescription for Xanax. More than anything else, just calm down. You’ve got less than a month to wait. The Bad Orange Man will be heading out of the White House and you can begin celebrating whatever you think is going to be so great about a Biden/Harris administration then.