The Failure of the 25th Amendment - Part V
or Mike Pence as his own worst enemy
The best part of political writing is the compliments; the worst part is not trolls per se; but pragmatists, regardless of their trollishness, who seem bent on undermining the realist argument (in the case of this essay regarding the 25th Amendment).
That said - even if one thought that with 13 days to go to the end of Trump’s term (assuming a Section 4 consideration by Pence and the cabinet), the vote would lean towards not removing Trump, it still ignores what would have been an epic meeting.
To be sure, Trump had no defenders immediately after January 6th, but the moment had at least two cabinet members willing to prosecute Section 4 invocation, one of whom was an actual prosecutor.
Both Acting Attorney General Jeffrey Rosen and Acting Secretary of Defense Christopher Miller were somewhat aware of some of Trump’s machinations prior to January 6th and were bent towards telling what they knew.
Rosen would have reviewed the events recounted here as “Donald Trump’s Big Weekend” and Miller would have dropped his January 4th memo on the table.
Critics Left and Right attacked the Department of Defense and Miller regarding the how and when of the DC National Guard’s response time and on whose orders they were under at various times on January 6th and whether they had been “disarmed1”
Between the above memo, the op-ed from the 10 living former defense secretaries2, and the “sort of “ firing of Secretary of Defense Mark Esper on November 9. 2020,3 the concern on the Left was understandable. It doesn’t take much realism, though, to see that Miller put a chain of command and standing orders in place for January 5th and 6th to preclude the DCNG from being used for partisan political purposes.
If the Vice-President has two cabinet members taking point on the Section 4 invocation (plus at least 3 others who seem ready, willing, and able to support to support that effort4), why wouldn’t you entertain a meeting?
With the problem moving from needing 7 votes to become Acting President to needing to move a mere 1 or 2 votes (with Scalia, Perdue, or perhaps Bernhardt all in play), there is little reason not to push the issue.
Why didn’t Mike Pence act? Who knows, but his reticence is not exactly a profile in courage.
Section 4 is not compulsory nor does it really put the Vice-Prrsident in the driver’s seat nor does it create a “rule of four5” review process -- it requires some level of leaderships and resolve. Sadly, that sentiment is not contained in the language of Section 4 of the 25th Amendment.
Pity as one was desperately needed on January 7th.
This is an excellent analysis of the January 4th memo. https://www.truthorfiction.com/unpacking-the-dc-national-guard-miller-memo/
https://www.washingtonpost.com/opinions/10-former-defense-secretaries-military-peaceful-transfer-of-power/2021/01/03/2a23d52e-4c4d-11eb-a9f4-0e668b9772ba_story.html
Esper had already prepared a resignation several days before. https://www.nbcnews.com/politics/donald-trump/long-odds-trump-defense-secretary-esper-has-prepared-resignation-letter-n1245846
DeVos (Education), Chao (Transportation), and Azar (HHS).
https://www.scotusblog.com/election-law-explainers/rule-of-four/