Thursday, September 28, 2023

The Convict President: Trump & the 25th Amendment Shuffle

Let us suppose that Trump is convicted in the Washington D.C. case  and the New York case, but in the latter only of a misdemeanor. (See Conjectures & Arguments, Philosophy & Law: Legal Problems of the New York Criminal Case against Trump.) In the Florida case he benefits either from postponement until after the election from the hand of his appointee Judge Canon or from her Judgment of Acquittal (Federal Rule of Criminal Procedure 29, which, when granted after the jury is sworn, is unappealable).

In the Georgia version of RICO case for election tampering, I think the most likely outcome is a hung jury. A Georgia jury, even an Atlanta, Georgia, jury is very likely to have at least one MAGA member dedicated and clever enough to preveracate through the jury selection process. 

Still, being found guilty of even a single serious federal felony whould be enough to land Trump in prison. Surely, then, he could not assume his White House duties. Not so fast.

First, from prison, (where he was sworn in), President Trump would execute a 25th Amendment, Section 3 declaration that he is unable to discharge the powers and duties of his office. Then the Vice President, say Kristi Noem or Marjorie Taylor Greene, assuming the powers and duties of the President, would pardon Trump in the Washington D.C. case. (She would also pardon him in the Florida case were that to go so far, but it won’t.) 

Finally, Trump would execute the Section 3 declaration that he was ready to go, and that would be that.


If, perhaps because Trump wouldn't want to declare that he would be anything other than history's best president even if imprisoned, the job would be done via Section 4 of the Amendment making use of the Vice President and the Cabinet to remove him from office long enough to be pardoned. (Then, again, however, he might avoid the 25th Amendment altogether by just pardoning himself. This, however, would be legally doubtful.)

Democrats might possibly try to block this Section 4 ploy if they had an majority in the Senate by refusing to confirm Trump's Cabinet nominations. 

How might the Majority Leader argue for such an unprecedented exercise of the confirmation power? One possibility would be to contend that Trump's publicly stated authoritarian goals create a positive duty to deny him any help whatsoever. It is a democratic virtue to oppose any step towards authoritariansm, but the waters are at least muddied when it only a preliminary organizational step by an authoritarian wannabe who was democratically elected. (Put aside, that Trump, if elected well almost certainly not have even a plurality of the popular vote.)

What might at first seem more attractive is that no one can possibly discharge the powers and duties of the office of President of the United States from prison and therefore confirmation of a cabinet for the purpose of aiding in said discharge would be an exercise in futility. Trump should see that his position is untenable and resign.The problem with this argument is that it is precisely the 25th Amendment that sets out the framework for dealing with the problem of incapacity to discharge the powers and duties of the office. Should Trump wantonly decline to resign, a more than negligible possibility, the Democrats would be throwing a monkey wrench into the Constitutionally mandated machinery designed for the very problem they purport to be concerned about.

I seriously doubt that 51 Democrats could be persuaded to vote against confirmation of each and every Trump cabinet appointee. Joe Manchin for Commerce has surely a friend or two amond Democrats.

Even if 51 senators could be persuaded, the various cabinet level departments would still have acting heads, and it is not at all clear that these acting heads should not count as the "principal officers of the executive departments" within the meaning of the 25th. This language appears only once in the Constitution outside the Amendment. In the 2nd Section of Article II, the President is given the authority to require written opinions of any of "the principal Officer in each of the executive Departments." Undoubtedly, the President may require such of an acting head as well as of a confirmed officer. (There might be some doubt here as the Article II power is surely reaches farther than the 25th Amendment "principal officers" as interpreted as referring to the Cabinet.)

Suppose I am wrong early on, and Trump is convicted in the Georgia case. With Trump out of federal prison, and on probation in New York. I think there would be irresistible pressure on the Georgia Board of Pardons and Parole to commute Trump's sentence "for the good of the country" and for their own personal safety. 

Trump serves all but a day or two of his term, his health and mental acuity permitting.

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