Updated at 3:16 p.m. ET
In an apparent attempt to quell a political storm building around him, including calls for his resignation or removal, President Trump finally acknowledged he had lost the presidential election.
In a video released Thursday night, the president said his focus now was on an “orderly and seamless transition of power.” The move came just a day after he incited mob violence at the U.S. Capitol that resulted in the deaths of five people.
That focus didn’t last very long, however.
On Friday morning, came another tweet with signature Trump indignation. He asserted that the “patriots” who voted for him “will not be disrespected or treated unfairly in any way, shape or form!!!”
That was followed up with another tweet confirming he would not be attending President-elect Joe Biden’s inauguration.
Genuine steps in a peaceful transfer of American power include humility, concession and shows of unity, like, yes, attending an inauguration. It’s something foreign leaders have marveled at with envy as something that makes America great.
Instead for Trump, it’s the same as it ever was. The same defiance, the same grievance, the same victimization mentality that has fueled his right-wing, anti-establishment political power. It’s all just the latest chapter in an erratic and volatile presidency that ends in 12 days.
Upon hearing that Trump won’t attend, Biden matter-of-factly on Friday afternoon called the decision “one of the few things he and I have ever agreed on.” He said Vice President Pence is “welcome to come. We’d be honored to have him there.”
Trump’s grudging acceptance that he won’t continue to be president after Jan. 20 has done little to quell the determination of scores of lawmakers — a growing number of Republicans included — to make the president pay a price.
Their options are limited, however, particularly by a timeline that makes removing him from office difficult, if not impossible. There are two legal options to remove a president — the 25th Amendment and impeachment. And there are now calls for administration officials and members of the military not to follow presidential orders.
The 25th Amendment
Section 4 of the 25th Amendment allows for the removal of a president who “is unable to discharge the powers and duties of his office.”
It seems unlikely to be invoked, however, because it would require the vice president, a majority of the president’s Cabinet and two-thirds of Congress to vote to remove the president from office.
House Speaker Nancy Pelosi and Democratic Senate leader Chuck Schumer are calling on Pence to invoke it, and it has apparently been talked about among some Cabinet members.
But Pence appears to have little appetite for going forward with that. Pelosi and Schumer said Thursday they tried to call Pence to discuss it but were left on hold for 25 minutes before being told the vice president wouldn’t be speaking with them.
Impeachment, take two
A second Trump impeachment, on the other hand, appears to be growing more likely by the hour.
“The sentiment of the caucus is heading in that direction,” House Majority Whip Jim Clyburn of South Carolina said Friday afternoon on MSNBC.
The House of Representatives could move quickly to file articles of impeachment, vote on them and send them to the Senate. The Senate would then have to take them up immediately. Impeachment takes precedence over any other business.
The problem is: The Senate is adjourned until Jan. 19, and Biden’s inauguration is the next day.
So removing Trump from office isn’t going to happen through impeachment given that timeline. It would also delay confirmation of Biden’s Cabinet. That might be less of a priority right now than holding Trump to some account, but it would leave Biden without secretaries of defense, homeland security or state, for example, as he takes office.
Biden sidestepped the issue Friday afternoon, saying that impeachment is “a decision for the Congress to make” and that he’s focused on three issues — the coronavirus, vaccine distribution and the economy. He said the “quickest” way to get Trump out of office is for him and Vice President-elect Kamala Harris to be sworn in and get to work.
The House may well go through with impeaching Trump for the reason of trying to stop Trump from holding political office again.
The Constitution, under Article I, Section 3, Clause 7, says that “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
But to disqualify him, there would need to be a separate vote and it would be up to the Senate to consider it.
“Procedurally, they have the articles of impeachment, the Senate would convict and then after they convict, someone would make a motion to also disqualify and then they would take up that,” said Brian Kalt, author of Unable, The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment. “So it’s totally at the discretion of the Senate whether to consider it, and then once they consider it, it’s just up to that simple majority whether they do it.”
But with the Senate out until Jan. 19, there’s a constitutional question of whether impeachment can go through after a president’s term is up.
And there’s also a question of whether the penalty barring him from office would even stick.
“It disqualifies you from office under the United States, and the Constitution elsewhere distinguishes that from Congress,” Kalt said, adding, “Officers are generally appointed positions, and possibly the president, too, although there’s some debate on that, since he’s elected.”
So could Trump run again even if a disqualification provision passes the Senate?
“He could try,” Kalt said. “There are people who have argued that. I think, though, as a practical matter, if they’re going to get two-thirds in the Senate against him [for impeachment], it would be a sign that just as a practical matter, he’s lost enough Republican support, that he’d be facing an uphill battle getting the nomination anyway. So that would help. But he could fight it out. I mean, he’s shown a willingness to do that.”
While there is support from some Republicans, it’s not clear there would be enough to support Trump’s removal.
House Minority Leader Kevin McCarthy said he reached out Friday to Biden “to lower the temperature.”
“Impeaching the President with just 12 days left will only divide our country more,” McCarthy tweeted.
That came despite McCarthy joining objections to Biden’s certification Wednesday, both before and after the mob stormed the Capitol.
Sen. Lindsey Graham of South Carolina, who has been one of Trump’s most loyal foot soldiers but did not side with objections to the 2020 election, warned of “damage that would be done” from impeachment and that it would not be successful.
Not following presidential orders
Some are also encouraging another extraordinary step: not following a presidential order.
“This morning, I spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike,” Pelosi said in a press release Friday. “The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy.”
That’s not without precedent.
“You may recall back during the impeachment period with Richard Nixon, Secretary of Defense Jim Schlesinger put out the word — do not follow any order that involves using nuclear weapons until you check with me or Secretary [Henry] Kissinger,” William Cohen, defense secretary under President Bill Clinton, told PBS NewsHour this week before the events at the Capitol. “And I would expect the chairman of the Joint Chiefs, who is not in the chain of command, I would expect the acting secretary of defense to do something quite similar to that.”
Cohen, who was one of 10 living former defense secretaries to sign onto a letter urging the president to facilitate a peaceful transfer of power, asserted that members of the military only have to follow orders that are legal, ethical and constitutional.
But not following a command, he said, “requires those in the chain of command to make an assessment: Is this done for legitimate reasons? Is this something that’s done for purely political opportunity? They could then refuse to carry out that order.”
But that could only last for so long.
“It could slow things down,” Kalt said, “but a determined president, as long as he has his powers, can eventually get what he wants.”
Because of the timeline and the politics of the Republican Party, any real accountability for Trump could come after he leaves office — whether that’s through legal action related to the president’s incitement of the violence, legal investigations in New York or simply through damage to his brand and business empire.