“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.
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.