DISCLAIMER: All predictions should be viewed through the lens of how wrong I was when that I said there would never be a special prosecutor.
Since Douthat’s now-infamous Amendment XXV op-ed brought the constitutional shenanigans out of the depths of the Blawgs into the mainstream discourse, I’ve found myself asking yet again what we the opposition are expecting to accomplish. Not-Trump is, in the abstract, a worthy goal, especially with no one worse looming on the horizon yet. In practice, achieving not-Trump by not-electoral means is likely to bring with it a host of other, more interesting problems. As a connoisseur I find these fascinating, but as a citizen I’m not so enthusiastic. There are three constitutionally legitimate ways of achieving not-Trump before 2020: resignation, impeachment, or Amendment XXV. Resignation is boring and I’ll eat my hat if it happens. The other two options have a common obstacle: neither of them would have any popular legitimacy.
The advantage of impeachment is that it’s hard to call it undemocratic: it’s right there in the constitution and only elected officials are involved. However, the absence of consensus makes it unlikely that Congress will risk the process in the first place. Impeachment has to follow public opinion. Most likely we will only see action from Congress if a critical mass of Republican voters are demanding Trump gets the hook, otherwise it’ll just be Clinton Redux. Then, I’m not persuaded by the argument that Amendment XXVing him is inherently undemocratic: it’s initiated by the cabinet, but it still requires the consent of 2/3rds of Congress if you’re going to make it stick. It doesn’t seem to be within the original intent of the amendment, which was to provide a mechanism for replacing the president if he was incapacitated but not killed in an assassination attempt, but creatively literalist legal interpretation is a noble American tradition. Of course, that doesn’t matter: when the average member of the People can’t name their own senator, we shouldn’t expect them to grasp, let alone get behind, this sort of casuistic constitutional contortion.
The practical objection to Amendment XXVing him out is that the now-infamous groveling meeting where everyone except Mattis pledged their eternal love for Our Glorious Leader suggests that the cabinet would not be interested in doing any such thing. The speculative objection to Amendment XXVing him is that, if successful, it does nothing to solve any crisis of legitimacy— it makes it far worse. Theoretically it puts him where he can’t trash institutions or start a war on Twitter, but as soon as the process is started, we’ve got ourselves a Type II constitutional crisis. It begins with the most spectacular Twitter hissy fit ever seen in this mortal vale of tears and probably the firing of the entire cabinet. Next comes exhausting quarrels over the meaning of “unable to discharge the powers and duties of his office” both on the floor of Congress and in the public discourse. No consensus will ever be reached. We’re stuck with a Mexican standoff in DC. The conflict totally consumes Congress. Trump and Pence are both insisting on their authority, and the rest of the executive is trying to function with even less leadership than usual, since there’s neither the time nor the inclination to confirm replacements. SCOTUS is trying to referee a situation that has no precedent except perhaps the Western Schism. At least half, and likely more, of the People won’t be having it. The National Mall could fill with dueling protest camps. After that it’s probably not safe to make predictions.
In a piece called “The Guardrails Cannot Contain Trump”, Krauthammer vagueblogs at Douthat and despite the title goes on about how when guardrails are failing we must strengthen the guardrails. Krauthammer and all the other Very Serious People are correct insofar when you’re trying to keep a constitution together, tricks tend to be an own-goal, but we cannot say in advance that Trump will be worse than some kind of strange state of exception any more than we can say that such a state of exception will be worse than Trump. The problem is that the Very Serious People don’t offer any serious suggestions on how we’re supposed to shore up the norms and institutions. Our legislative deadlock is not new, and it’s not improving. “Congress should redouble oversight” is just screaming into the void: the failure of the system is largely due to the longstanding unwillingness of Congress to properly perform its oversight role, or to exercise a number of other powers it constitutionally possesses over the executive. The bureaucracy will fall: when the principled resign in protest, their positions get filled by weasels or go unfilled altogether. Douthat’s idea is crazy, but at least he’s aware that we’ve run out of good choices.
When I started this post, I was convinced that neither impeachment nor Amendment XXV would happen. After tonight’s Russia-Thing-related stories, I’m not so sure. We’re out of good choices, but we have to choose anyway.