When is the office known as the Presidency of the United States vacant? We all know that the Constitution and the Presidential Succession Act ordain that the office of Chief Executive is never meant to be entirely vacant, although an incumbency may expire prematurely by way of Articles of Impeachment, trial before the Senate, and removal upon conviction of “high crimes and misdemeanors.” We have yet to see a President removed through the complex judicial/political machinery of Impeachment. Andrew Johnson and William Clinton were not convicted by the Senate; Nixon resigned. Death by natural causes or assassination has prematurely ended other Presidencies.
The mini-Mussolini who is currently incumbent– the so-called 45th “President”– is not likely to follow Nixon’s example, even if he may be capable of realizing that he has lost popular support from his party and his base. He and his Regents might dare his party to impeach, and win the bet that they won’t, even after a majority of Representatives and Senators repudiate him. Self-seeking political hacks might prefer to campaign against their party’s leader rather than offend his rump of true believers by removing him from the governmental scheme. That nasty scenario would leave us with a chief executive who will be shown by the Mueller Report, and possibly by a Declaratory Judgment victory by the Tribe consortium, to be in flagrant violation of the Emoluments Clause of Article I, § 9.
The Complaint for Declaratory Judgment filed in federal court by a consortium of leading Constitutional scholars led by Laurence Tribe could become a powerful vehicle for precipitating the final crisis. That is the underlying political (or legal-realistic) basis for the consensus view that the Supreme Court will avoid deciding the merits of the emoluments question by invoking one or more of the customary jurisdictional evasion doctrines, such as a determination that the plaintiffs lack standing. But let’s consider the possibility that the Tribe suit prevails all the way through to affirmation by the Supreme Court.
If push ever does become shove, the opaque Regency that rules in the name and person of the 45th incumbent is likely to challenge the authority of the (so-called) Supreme Court to overrule its own interpretation of the limits of executive authority. Marbury v. Madison means nothing to the regents or Trump. That old bootstraps case is an outrageous mystery to Trumpists. Thus it is entirely plausible to foresee a crisis pitting an illegitimate incumbent who has enticed or intimidated enough legislators to forestall impeachment, against a federal judiciary (and a diligent “independent” counsel) that declare him to be in flagrant ongoing violation of the Emoluments Clause.
A reluctant and complicit Vice President Pence might become the next President if the Prayer of the Tribe complaint were amended to add an article inviting the Courts to declare that Trump’s deliberate acceptance of foreign emoluments amounts to his Resignation from his federal office.
Call it “constructive resignation” or the can’t-have-the-cake-and-eat-it-too principle: the legal question of what formalities suffice to resign a federal office is a proper issue for the judiciary to resolve– and there is history and precedent suggesting that the question, however novel it may be, should be answered by finding that the office of President of the United States may be relinquished through certain deliberate actions, without a showing that the officeholder specifically intends that result.
As evidenced by Federalist Nos. 22 and 39 and narrative provided by Michael Klarman in The Founders’ Coup, the Emoluments problem was a focal issue discussed in the Constitutional Convention, and one most keenly felt perhaps by George Washington himself. There should be no question that deliberate violation of the Emoluments clause is an impeachable offense– but there is also no question that by vesting impeachment jurisdiction exclusively in the political branch, our constitution appears to make Impeachment jurisdiction discretionary. The constitutional structure of checks and balances indicates that Impeachment jurisdiction ought not to be presumed to limit the only eligible remedy for unconstitutional exercise of Executive authority to forcible ejection from office. The 25th Amendment provides an alternative removal mechanism, answering some of the problems the nation has encountered when a President is incapacitated. Article I Impeachment and Amendment 25 suspension or removal arguably occupy the entire field of involuntary termination of a Presidency.
Nixon’s resignation letter is clear and unambiguous. No examination of formalities was required in that unfortunate episode. That does not necessarily end the matter.
An old veteran whose rants we tolerate in our cracker barrel discussions reminded us that our commissioned military officers and diplomats are also governed by the Emoluments clause. John Paul Jones got away with accepting a commission in the Russian Navy (Black Sea theater) without advance permission from President Jefferson. A considerable body of law has evolved since then, dealing with a propensity of retired U.S. Military brass to cash in as foreign mercenaries, or sometimes as volunteers in Israeli or other causes. The old vet said he remembered some guardhouse wisdom in the time of ‘Nam, to the effect that one sure way for a Reserve Officer to get out of the military was simply to take out a state commission as a Notary Public. His ‘law’ may be bogus and the story may be apocryphal, but it is also suggestive.
Emoluments violations may trigger a more severe consequence than forfeiture of a United States commission, or loss of retirement benefits. The violator might unwittingly forfeit his U.S. Citizenship, altogether. If Philip Roth were a constitutional novelist, his epic might end with Trump decamping to enjoy his palatial dacha beside his compatriots in Sochi.
If resignation is an alternate form of national deliverance, we must ask what formalities will demonstrate that it has occurred? Who is to decide when and how a resignation has happened? If a hot mike records “I’m sick and tired of this job, that’s it!”, can Pence pick up a Bible and ask the nearest judge to swear him in? Could a citizen or another person in the line of presidential succession seek declaratory relief that the office has been vacated? If not, why not? Is any of the language of the 25th Amendment preemptive?
As this sort of scenario becomes more likely by the day, it remains to be said that the bettor’s perspective sees the odds of a Presidential vacancy occurring before the summer of 2018 distributed in varying proportions between the following scenarios:
- Putin pulls the plug (Steele’s evidence disclosed)
- Voluntary resignation letter
- Impeachment after rejection of resignation option
- Declaration of Constructive Resignation
- Death (natural or by assassin)
- Incapacity via 25th Amendment
Whether any or all of the above occur is a wager against long odds. This blogger sees them changing, day by day, to the point that he now sees the likelihood of Trump’s term ending prematurely as about 60% more likely than not; and of all the potential scenarios, he sees the Putin firing as the most likely, as noted in the previous post.