Friday, January 08, 2021

THE PRESIDENT IS BOTH UNFIT AND A CONSTITUTIONAL CRIMINAL

 


“THE PRESIDENT IS BOTH UNFIT AND A CONSTITUTIONAL CRIMINAL”: CONGRESSMAN JAMIE RASKIN ON TRUMP’S 25TH AMENDMENT CRISIS—AND THE LIKELIHOOD OF IMPEACHMENT

Raskin, a constitutional law expert who sits on the House Judiciary Committee, is at the center of the fallout from the Trump-incited Capitol attack, where he and his family members were forced to shelter in place. “There is broad bipartisan consensus now that Donald Trump is a lethal danger to our republic,” he says.

 

BY ABIGAIL TRACY

JANUARY 8, 2021

Less than a year after the Senate voted to acquit Donald Trump on two articles of impeachment, Nancy Pelosi has threatened to launch formal proceedings to remove him from office yet again, after he egged on a furious mob that violently took over the Capitol Building. “This is an emergency of the highest magnitude,” Pelosi told reporters Thursday. “While there’s only 13 days left, any day can be a horror show for America.” The House Speaker said the best course of action would be for Mike Pence to put Trump’s removal from office into motion under the 25th Amendment. Failing that, Pelosi said Friday that the Democratically controlled House would take up the mantle through impeachment—a move backed by Senate Minority Leader Chuck Schumer—if the president didn’t resign “immediately.”

The notion that Trump could be impeached for a second time might seem far-fetched, particularly given the time constraint. But Democrats say they’re prepared to move quickly. “Leadership moves in a very coordinated and disciplined way when they are motivated to,” a Democratic congressional staffer told me. “I have no doubt in my mind that the House can take decisive action to make our democracy safer in very short order.” A senior Democratic staffer told me the House could move on impeachment as early as Monday, and Congresswoman Katherine Clark, the assistant House Speaker, said a vote could come as early as the middle of next week.

Congressman Jamie Raskin—a member of the House Judiciary Committee and a constitutional law professor—will have a front-row seat to the rapidly unspooling events of the next week. Raskin, who suffered a personal tragedy in December with the death of his son, and who was on the grounds of the Capitol as it was forcefully occupied by Trump supporters, nevertheless took the time to discuss the intricacies of the 25th Amendment and what a second impeachment of Donald Trump might look like.

Vanity Fair: Can you explain the 25th Amendment?

Congressman Raskin: The 25th Amendment is all about the preservation of the republic and the continuity of government. That’s why it’s in there. It was added to the Constitution in 1967, in the nuclear age, with the understanding that it could be extremely dangerous to have a vacuum or an unqualified person sitting in the Oval Office. And if you go back and you look at what Birch Bayh and Robert F. Kennedy were talking about, it was about the central importance of protecting the American system of government against destabilizing dynamics in the presidency.

How would it work in a situation like this, particularly as a number of Trump cabinet officials resign?

There are two big misconceptions about the 25th Amendment. The first is that it’s all about the removal of a president who is unable to discharge the powers and duties of office. That is section four, but the first three sections deal with other problems in terms of vacancies and instability in the presidency. Section one is all about if the presidency is vacant, the vice president becomes president, and that was not clear before. It was clear that the vice president exercised presidential powers, but it wasn’t clear that he actually became the president. Section two is all about filling a vice presidential vacancy by presidential nomination and then majority votes in both houses of Congress. The third section is about a president voluntarily transferring the powers of his or her office to the vice president in the event of a temporary vacancy. This too has happened numerous times, usually about the famous presidential colon. It’s happened during a number of colonoscopies. It happened during President Reagan’s colorectal surgery. But that is done voluntarily by the president. And it ends when the president is able to resume his or her duties.

Section four is the part that is about a president who for whatever reason—physical or mental—is unable to recognize his or her own inability to successfully discharge the powers and duties of office. So that’s what is coming to focus today, but understand that that’s part of a broader system of rules, which have been activated many times in our history. The other major misconception is that in section four, it requires the vice president and a majority of the cabinet to act. That is one of two ways it can be activated. The other is that the vice president and a majority of a body set up by Congress determined that there is a presidential inability to discharge the powers and duties of office.

You previously introduced legislation that would set up such a body.

Right. It’s pretty self-evident who would be on the body. We would want former high-ranking officials in the executive branch, including former presidents of both parties; former attorneys general and secretaries of defense and state; former surgeons general from both parties; and then we would want expert medical personnel.

The reason this is all over the news right now is because we just saw the president of the United States inciting a mob that engaged in a violent insurrection and attempted takeover and perhaps a coup against the Congress of the United States while we were engaged in counting Electoral College votes and effectuating the peaceful transfer of power. It’s hard to think of a more egregious departure from the president’s obligation to faithfully execute the laws of the United States and to uphold the Constitution.

If the removal process outlined in the 25th Amendment were to be completed, would the vice president step into the role of the president?

Yes. None of this happens without the participation of the vice president, and the vice president is the sole exerciser of presidential powers during the period of disability. Now, the president can come forward and say at any point that the disability no longer exists. And at that point the vice president and the body set up by Congress or the cabinet, or both of those entities, could act to overrule the president. At that point Congress would have 21 days within which to act.

There are less than two weeks left of the Trump presidency. We saw both Nancy Pelosi and Chuck Schumer call for impeachment if Vice President Pence does not invoke the 25th Amendment. As a member of the House Judiciary Committee, can you shed light on what discussions are happening around impeachment and what a timeline might look like?

Let me say this first: I introduced a 25th Amendment bill in my very first year in office because the 25th Amendment calls for the existence of a congressionally appointed body that would be able to operate alongside the cabinet to assess a presidential incapacity. So I think this is something that we need for all time. I wish we had taken up my bill before and settled this under other circumstances, but now we are in an emergency situation. We also have the power under the 25th Amendment, section four, to deal with an emergency. And the procedures would have to be different from what was set forth before. They would still be bicameral and they would still be bipartisan, but they would have to move far more quickly to address the emergency that I think became clear to the vast majority of the country this week.

We have a president who is egging on violent, armed insurrection against the Congress of the United States in order to block the peaceful transfer of power. This president is either unable or unwilling to faithfully execute the laws and to uphold the Constitution. Therefore he cannot successfully discharge the powers and duties of office for the next 12 days. The public has no confidence, but more importantly here, the Congress, which is charged with making sure we are secure, has no confidence that this president can do it. Those Trump die-hard sycophants still out there will say this is some kind of partisan thing, but there is broad bipartisan consensus now that Donald Trump is a lethal danger to our republic. The only person who gets new power out of this is Vice President Pence, with whom I disagree about pretty much everything. But I do think that he is a sane person and has that basic respect for the Constitution.

In the last few days, we’ve heard words like treason and sedition thrown around. Are they applicable to this situation and the actions of President Trump?

Treason is the only crime that is defined explicitly in the Constitution, and it has to do with adhering to and giving aid and comfort to the enemies of the United States. There are people who think the president has been doing this from the beginning, and there are people who think this president would never ever do that. This is a president who has completely failed to protect the Congress and the government and the people of the United States. If we were the only country on earth, that would be true because he gave aid and comfort to violent domestic insurrectionists who invaded the Congress of the United States and shut down our work.

Now, when you’re talking about impeachment—and of course this is a president who has already been impeached—the standard is one of high crimes and misdemeanors like treason and bribery. This president has already been convicted of abusing his power and blocking the legitimate functions of Congress. That is already part of his record. He has, to my mind, committed multiple impeachable offenses since then, as recently as his phone call to the Republican secretary of state of Georgia, where he demanded that the secretary simply find thousands of new ballots in order to create counterfeit results in the presidential election. I counsel everybody to go and listen to that conversation if you have not done so already. I think that that would be another impeachable offense.

But if this president had committed no other transgressions against the Constitution—and of course there have been dozens—addressing a rally of violent insurrectionists and inviting people to come to Washington and to get wild, with people who broke windows and entered the Capitol complex without going through a metal detector, that in itself would be an impeachable offense. That is a high crime akin to bribery and treason. It is essentially soliciting and aiding and abetting a violent attack on the people’s representatives.

It must have been a terrifying experience.

I’ll tell you what was truly terrifying for me. I was okay. My son, whom we lost a week ago, was very politically engaged, and I felt him with me the whole time, so I knew I was exactly where I needed to be. But my youngest daughter asked me not to go in. I told her I had to because the stakes were so huge, and I invited her to come with me. So she was with me on the Hill Wednesday, as was my son-in-law, who is married to my other daughter. They were at the Capitol for seven harrowing hours and spent at least an hour hiding under a desk in Steny Hoyer’s office with my chief of staff while I was on the floor and this violent, rampaging mob was banging on doors and trying to get in and take over that office the way they took over and trashed Nancy Pelosi’s office. Offices were being stormed and people were being killed. While Donald Trump and his family threw a party to support this violent, seditious mob, my kids were hiding under a desk.

Congressman, I am so sorry.

Here’s the thing: To my mind the president is both clearly unfit and incapable of successfully discharging the powers and duties of office, including the duty of the peaceful transfer of power. But he is also guilty of having committed high crimes and misdemeanors. These things are not mutually exclusive. The president is both unfit and a constitutional criminal. So to my mind we should be moving along parallel tracks in order to secure the government and protect our people.

If there were people who still had any influence over the president and he could listen, they [should] convince him that he should voluntarily relinquish his powers under section three of the 25th Amendment. It has happened many times before in our history—there is no shame in that.

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