My friend Cheryl Pelicano is a blue sparkler in the circus of red that is South Carolina. And like all Democrats, she is aghast at everything related to President Trump. But all this Russia stuff, especially the latest involving Michael Flynn and his request for immunity, compelled Pelicano to ask me a series of “how can we get rid of this guy?” questions. So, I asked Laurence Tribe, legendary constitutional law professor at Harvard University, for the answers.
Democrats crossing their fingers in hopes of a miracle removal of Trump from the Oval Office should let the blood back in their digits. The prospects are slim to none. And if said miracle were to happen, Hillary Clinton would not be swooping in to save the day. This is one of those “careful what you wish for” situations.
“We’re in totally uncharted waters here,” Tribe told me via email. To say that he thinks Trump is illegitimately in the White House would be an understatement. “The more we learn about the apparent existence of evidence … pointing to collusion between the Trump campaign and Russia to install Trump in the Oval Office,” he said, “the harder it becomes to view Donald Trump as a legitimate occupant of the office he has claimed.”
“That said, I believe deeply in America’s Constitution and in the rule of law,” he continued. “But the same commitment to the Constitution as our highest law requires me to abide by the Constitution’s sole procedures for removing someone who has been sworn in as the president, however wrongfully.”
Tribe said there are only two paths for presidential removal before completion of a four-year term. “Removal upon impeachment and conviction” is one, he told me. The other is “the elaborate mechanisms of the 25th Amendment for displacing a president deemed by two-thirds of both Houses to be ‘unable to discharge the powers and duties of his office.’ ”
Now that I’ve laid that groundwork, here are the questions from Pelicano and the answers provided by Tribe.
Pelicano: If it turns out that the election was heavily impacted, and Trump colluded with Russia, is the presidency illegitimate? If so, what happens?
Tribe: There is no mechanism in the Constitution and laws as they stand today for redoing a presidential election, however many people believe it was rendered illegitimate by treasonous or otherwise unlawful manipulation; and no institutional mechanism exists even for reaching an authoritative determination that a presidential election was illegitimate. Those who have imagined the Supreme Court might entertain a claim of that sort and order a new election are deluding themselves.
In contrast, the question whether Congress might conceivably have authority, under the Constitution as written, to enact a special law for making such a determination and holding a new national election is one that some people have been contemplating, but the odds that any such law could be passed over Trump’s inevitable veto seem much too remote to warrant taking that option seriously.
Pelicano: Would that apply to Pence’s ability to ascend to office in the case that Trump were removed?
Tribe: Setting aside the virtually impossible scenarios I’ve described, what lies ahead of us, if Trump fails to serve out his term, is clear: Vice President Pence, however tainted, will become the nation’s chief executive unless Pence, too, resigns or is removed from office after ascending to the presidency upon Trump’s resignation, removal or displacement — in which case the Presidential Succession Act of 1947 specifies that the Speaker of the House (Paul Ryan) would succeed to the presidency. Following Ryan in that line of succession would be the Senate’s president pro tempore (Sen. Orrin Hatch of Utah), then the secretary of state (Rex Tillerson), and so on down the line of Cabinet members.
Pelicano concluded her email queries by asking, “Am I just dreaming?” Given what Tribe said, the short answer is yes. Sadly.
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