NOTE: I’m posting a short series of diaries, starting with this one, in which I lay out my thoughts about dealing with the Trump administration in the here and now and in the immediate future. I am sorry that I’m not an expert (like a Constitutional attorney) but I am at least semi-learned enough to plumb these subjects, so mostly I am throwing these ideas out for discussion and maybe some of you would be so kind as to school me if I need schooling.
I’ve met George Takei and he is every bit as awesome in person as you would expect. At this point he seems to be less known as a Star Trek actor as he is known as an Internet gadfly and human-rights activist — a role he took on relatively late in life. He’s been very outspoken about President Trump and on March 21 he tweeted thusly:
I think that here on Daily Kos a good many of us relate to Takei’s sentiment here. However, there is a fly in the ointment that he proposes: ours is a constitutional form of government and quite simply, there isn’t a mechanism in the Constitution to “void” an election.
The Founding Fathers foresaw a great many contingencies regarding the president and encoded those contingencies in the Constitution, such the “emoluments clause” meant to prohibit a president from taking gifts from foreign governments. And, as Alexander Hamilton explained in Federalist 68, one purpose of the Electoral College was to act as a kind of circuit breaker in the election process meant to trip in case a candidate’s “talents for low intrigue, and the little arts of popularity” threatened to send to the office of the president a flatly unqualified or compromised candidate; clearly in the 2016 election this circuit breaker didn’t function as intended. Postwar, we’ve seen the impeachment process as laid out in the Constitution exercised twice: the House Judicial Committee had hammered out Articles of Impeachment and those articles were headed for a yea vote by the full House when Richard Nixon was convinced to resign, and the House voted to impeach Bill Clinton for perjury and obstruction but the Senate would not confirm the impeachment.
In neither of these cases was it reasonable to assume or even suspect that the crimes alleged to have been committed by the president would continue under Gerald Ford or Al Gore. But what if it is not only shown and/or reasonably suspected that the president, the vice president, and many other members of his administration are compromised by a foreign power but that also the president and vice president’s election was secured with the assistance of that same foreign power through either or both of psyops (e.g., Internet trolling, Wikileaks’ release of HRC-related emails) or direct manipulation of voting results in certain districts (allegations of which are thus far unproven as far as I know)? If a foreign government’s active measures helped to throw an election in favor of a candidate who has financial and political ties with that same foreign government and whose associates and appointees have similar ties with that same foreign government, and especially if that government has leverage over those same people such that their actions and decisions can be guided and constrained by that government, then the entire White House all the way down to Executive Branch appointees and Judicial Branch appointees, can in my view be considered illegitimate.
What then? This is where the “Takei Solution” breaks down; the Constitution doesn’t offer a remedy for this. A conspiracy that compromises the entire Executive Branch is simply out of scope. But it doesn’t have to remain so.
I therefore suggest that the Congress take up drafting a new Constitutional Amendment (the XXVIIIth) to accomplish the following if invoked by Congress (I am only roughly fleshing this out and I’m not saying that these ideas don’t have major flaws):
- Appoint a chartered Provisional Executive (PE) with a Chair whose powers are roughly equivalent to that of the president. The PE’s primary mission is continuity of operations and has a time-limited term (I’d suggest two years) in which to complete its charter, but once its charter is completed it will dissolve even if its term isn’t up.
- The Cabinet will be discharged, basically resetting things to the point where they would be at the beginning of a new president’s term. Non-political appointees within the Cabinet-level agencies would assume the title of Acting Secretaries.
- Judicial seats appointed by the deposed president would be vacated, to include any on the Supreme Court, and all of that president’s not-yet-seated nominees will be disqualified.
- The PE will mount a new presidential election using the already-specified calendar dates but in the next practically-achievable year. There will have to be time for a proper campaign and even for potential candidates to “test the waters” before committing to run. If we wind up with our elections on odd-numbered years for the foreseeable future, so be it; that’s nothing compared to having a Provisional Executive hold power for a year or more longer than it absolutely has to.
For the composition of the PE I might suggest that representatives and senators nominate member from their own houses, with special elections to be held to replace them in Congress.
I believe that adding this Amendment would avoid the potential spectacle of Congress trying to accomplish the same effect — badly — by first impeaching the president, the vice president, the president pro tempore of the Senate, etc., etc. until it is thought that the president eventually arrived at is sufficiently uncompromised to remain in the office. It would give Americans and the rest of the world confidence now and for evermore that if the United States’ leadership is badly compromised by an external power, it isn’t a constitutional crisis and that in fact, the Constitution is built to handle this kind of stressor. Without such a mechanism, there’s going to be a natural tendency for Congress to do nothing in such an eventuality because serial use of the impeachment remedy looks ridiculous.