Mike Pence is either in an enviable position or the worst position possible, depending upon your point of view. He could remove Donald Trump from office as early as tomorrow, under a little studied section of the 25th Amendment, Section 4, which says:
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.
Now here’s how that would shape up: Trump is out of control and he may not sign the omnibus bill, which means that after midnight tonight, there is no more unemployment insurance and the government is set to shut down on Monday. Plus, stimulus checks which could have gone out this week, if Trump hadn’t thrown a monkey wrench in it all, will not go out, so the eleventh hour save has been dragged into the new year, maybe into the new administration.
Granted, contingency plans are being discussed to pass a stop gap measure to keep the government open, but the bottom line is that what Trump does or doesn’t do between now and midnight could have a massive impact on where things go from here.
Pence could relieve him of office. But would he?
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. […]
It may seem extremely unlikely that Mike Pence, who up to this point has been one of Trump’s most craven enablers, would even consider taking advantage of this constitutional power. But it’s always possible that, between now and January 20 when Trump’s term expires, the situation may become so extreme that he and eight other Cabinet members may find the modicum of personal courage and moral decency necessary to do the right thing.
Trump would put up a fight, but it wouldn’t matter this late in his presidency. Once Pence has transmitted the letter to Congress that makes him acting president, Trump may contest the vice-president’s actions via a letter of his own. Section Four, however, would give Pence four days to respond to this letter. After Pence did so, the Democrat-controlled House of Representatives could — by simple majority vote — decline to act on the substantive dispute for the remaining 21 days. (Meanwhile, Democrats could filibuster any action in the Senate.) Were it not the end of his term, Trump would return to office after 21 days if Congress failed to act.
This would solve a lot of immediate problems and moreover, it might actually let Trump off the hook. He is in Mar-a-Lago and bets are being taken whether he will even return to Washington. Michael Cohen predicted a while back that Trump is constitutionally incapable of attending Joe Biden’s inauguration because he would have to sit there and be gracious about losing and that’s not in his makeup. Likewise, the dramatic exit from Washington in Marine One, reminiscent of Nixon, is not something that he will probably want to show up for, either — unless he could get all the NATO powers to elect him King of Europe, or something. If he can leave triumphantly, then he might come back to Washington for that.
Therefore, on all these facts, Pence might in fact do Trump a favor and he might do himself a favor, playing the role of the strong Republican daddy who came in and took charge at America’s moment of crisis. That is a ploy that might work for him. Think of the 2024 ads now: (voiceover) “In America’s darkest hour (cut to shots of people bundled up, shivering, in line at food banks) Mike Pence took charge.” (cut to shot of Jesus with Matthew: 25-31 in subtitles) “For I was hungry and Mike Pence gave me something to eat, I was thirsty and Mike Pence gave me something to drink, I was a stranger and Mother invited me in.” Think of it, he could make a real biblical coup out of it, paraphrasing Genesis, “And the Lord said, Mike, if you can find eight righteous cabinet members within Washington, then I will spare all the place for their sakes.” There’s a possibility of real mileage here. This could grow legs. McConnell might appreciate it, too, because it would get the heat off of him, and if it didn’t work, Pence would go down in flames solo.
That’s the other possibility, instead of an instant theocratic coup, Pence might find himself incensing both Trump and the base and self-immolating. So this is a gamble for Pence: he would either rise to the top of Republican leadership, just like pond scum in the proverbial swamp by doing this, or it would boomerang explosively and he would destroy any hope he has in 2024 and be forever finished in politics — which might be the case already, in any event. So maybe he should try it, because as Trump would say, “What the hell does he have to lose?”
I certainly don’t know which way to call this shot. I wonder if Pence does?
This is a Creative Commons article. The original version of this article appeared here.