This isn’t just hopeful speculation on Glennon’s part, though it is controversial. He argued in a new Washington Post op-ed that the Constitution should be interpreted to see the vice president and president as a unit when it comes to impeachment based on election fraud.
He noted that, since the time the Constitution’s impeachment provisions were written and ratified, the role of the vice president has been radically altered — particularly because the founding fathers didn’t anticipate the importance of political parties.
“The initial system was designed to select as president and vice president the two individuals most qualified to lead the nation, whatever their political philosophy,” Glennon explained. “It did this by permitting members of the electoral college to cast two votes for the office of president. The individual who received the most votes would be president, and the runner-up, vice president.”
But this led to problems — most notably when Aaron Burr was elected to be Thomas Jefferson’s vice president in 1800 after a fierce campaign.
Glennon said that the 12th Amendment sought to fix this by requiring electors to cast separate ballots for president and vice president. This made unified administrations the most likely electoral outcome, but the change created an overlooked flaw:
Yet the change had critically important — and unnoticed — implications for impeachment. The election of a two-person ticket, rather than an individual, had the potential effect of permitting a vice president and his political party to benefit from electoral fraud by the presidential candidate so long as the vice president himself avoided committing an impeachable offense. A party’s ill-gotten gains — the presidency and all its appointments and prerogatives — would then remain in its hands even though its leader, the president, had been impeached and removed from office. Electoral corruption would still be rewarded.
And punishing election fraud was one of the main purposes of the impeachment provision in the first place, Glennon explained. So, he argued, there is “every reason to believe that after the amendment’s adoption, the Constitution has in this respect continued to mean what it did in 1787: that the presidency ought not be occupied by someone who attains it as the result of a stolen election.”
That means that if Trump’s impeachable crimes helped get him elected, then Pence must be ousted as well. In other words: Say hello to President Nancy Pelosi.
Lawrence Tribe, a Harvard constitutional scholar, was not impressed with this argument.
“This is just wrong as a matter of constitutional law,” he tweeted in response. “There’s a lot to commend Glennon’s reasoning now that vice presidents and presidents are chosen as a team, but as a basis for amending rather than enforcing the Constitution that we currently have.”
While legal scholars debate the constitutional merit of the argument, as a practical matter, observers should recognize that Glennon’s proposed scenario is one of the closest things to a political impossibility that there is. Even assuming that Special Counsel Robert Mueller reveals damning evidence about Trump, it’s still an open question whether enough Republicans in the Senate would ever be willing to vote to remove him.
The idea that Senate Republicans would vote to not only remove Trump but also Pence, thereby making Pelosi president, is even more laughable — especially if the only reason for doing so is a controversial constitutional argument.
Indeed, if we suppose that damning evidence comes out about both Pence and Trump with regard to election-related crimes, this might actually make impeachment less likely, not more. Because if Republicans admitted that Trump’s crimes were impeachable, they’d also have to admit that Pence’s actions were. And that, again, would lead to President Pelosi, a result Senate Republicans absolutely cannot abide. Resistance to the idea of promoting the speaker of the House could force them to excuse both Trump and Pence.
None of this should be taken to diminish Glennon’s well-argued point: Whether the Constitution requires it or not, it does seem perverse to remove a president for election fraud only to leave in place his hand-picked successor. If we have the opportunity to revise the Constitution, fixing this lacuna would be worth considering.
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