Assume, hypothetically, that the upcoming report by special counsel Robert S. Mueller III, together with other evidence, were to establish conclusively that candidate Donald Trump engaged in electoral fraud or corruption by unlawfully coordinating his activities with the Russian government. Assume also that Trump derived a decisive electoral benefit from that coordination. And assume that no probative evidence exists that Vice President Pence was aware of the coordination. Trump would be impeachable. But what about Pence, who himself would have committed no impeachable offense?
The question can be argued either way, but the better view is that Pence, too, would be impeachable. The reason is that, had Trump not engaged in electoral fraud and corruption, Pence, like Trump, would not have been elected. That Pence would still be first in the line of succession to replace Trump is the result of an unintended consequence of the 12th Amendment, which was ratified in 1804. The fate of the Republic ought not turn on a constitutional oversight.
Before the amendment’s ratification, the original Constitution permitted removal of a president for electoral fraud. It didn’t matter whether that misconduct occurred before or after a president took office. The Framers clearly intended that theft of an election through fraud and corruption constitute an impeachable offense. James Madison was not concerned only about pre-election perfidy when he worried, at the Constitutional Convention in 1787, that a president might “betray his trust to foreign powers.”