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Metabolizing and normalizing Donald Trump’s serial unhinged actions has become America’s least favorite pastime, and these past few weeks alone have featured threats to end an entire civilization, claims that the Pope is “weak on crime,” and a flirtation with himself starring in some freaky messianic wall art. Instead of attempting to comprehend and explain the unfathomable, or waiting mildly for the next episode, the Constitution constructs actual methods for removal of unfit leaders, methods we regularly debate without actually deploying. On this week’s Amicus podcast, Dahlia Lithwick was joined by Rep. Jamie Raskin, who represents Maryland’s 8th Congressional District in the U.S. House of Representatives and is the ranking Democrat on the House Judiciary Committee. He served as lead manager in the Trump impeachment trial for the events of Jan. 6, 2021. They discussed the constitutional remedies of impeachment and the 25th Amendment, and why abandoning them for political expediency is a mistake. An excerpt of their conversation, edited and condensed for clarity, appears below.

Dahlia Lithwick: Before we have a conversation about the 25th Amendment and impeachment and removal, I think it’s actually important to stake out the ways in which, when people dismiss all this as “just talk,” or some brilliant Mad King ploy, or that none of it really matters because he didn’t in fact end an entire civilization, why all those rationalizations are really wrongheaded and damaging. Maybe start by contextualizing how different, how dangerous, how violent and insupportable this kind of conduct is from the president of the United States. 

Jamie Raskin: Think of it from the perspective of the Framers. Like if Thomas Jefferson or James Madison were here, how would they respond to the whole situation? So you’ve got a war that was never declared by Congress, not authorized by Congress at all. A unilateral war where the president is then threatening nuclear devastation, which is obviously outside of the contemplation of the Framers. Someone threatening to destroy an entire civilization and to kill millions of people. All of which is to say that the Constitution wasn’t really set up for this, and the reason everybody has gravitated so quickly to the 25th Amendment is because it was adopted in 1967, in the nuclear age, and it’s the closest thing to capturing constitutional mechanics to address a profound crisis that shook people to the core.

So we can try to distance ourselves from what happened by saying it was either a mad genius act or it was just an act of political desperation to save face, so that he could later concoct a rationalization that he had forced a great settlement. But, in any event, the rhetorical outburst in itself was a profound assault on people’s sense of peace and security, and that’s why everybody is struggling to figure out what, within the constitutional context, we can do.

So let’s talk about that, because the two cures that are being bandied around again this week are impeachment and the 25th Amendment. None of this is new. We just cycle in and out of these conversations about the 25th and impeachment. I find myself just saying: Is it worth even having this conversation until and unless Democrats take the House? The exigency is now, right? The exigency is not next November. 

And that’s the discordance of our current crisis with what is in our constitutional tool kit. We just don’t have the tools to address this in real time, the way we all experience the crisis. Impeachment is a remedy if and when it works, and that takes months to put into play, right? So traditionally it’s gone through the Judiciary Committee, it’s gone to the House floor. Then there’s time for the Senate to set its calendar, and then the Senate, assuming there’s been an impeachment in the House, conducts a trial. The closest we came to doing it in the Trump period, of course, was the second impeachment trial, which was the most sweeping, bipartisan vote we’ve ever had to convict a president in American history. Out of the four presidential trials that have taken place, seven Republicans joined all 50 Democrats in voting to convict. But a 57-to-43 margin, as commanding as it sounds, was not enough, because it’s a two-thirds requirement. So that’s a very tall order for treason, bribery, and other high crimes and misdemeanors, which is left open.

The 25th Amendment was adopted after the assassination of President Kennedy. And it dealt generally with the problem of succession and stability and continuity in government. What everybody’s talking about is Section 4, which has never been used. Section 4 says that the vice president and a majority of the Cabinet can determine that the president is unable to successfully discharge the duties of office and then transfer the powers of the president to the vice president. At that point, if the president objects, he can write to that effect. And if he does, then only a two-thirds vote of the House and a two-thirds vote of the Senate can override that presidential declaration of fitness. That’s half of Section 4. But the other half is interesting because it says that the vice president and a majority of a body to be set up by Congress can make the same determination, and that body’s never been set up. And so in 2017, and then again in 2020, I introduced legislation to establish that body, which has never existed. I think that should be a permanent continuing body for whomever’s president. We’ve got 535 members of Congress; we’ve only got one president. And we know that a lot of things can happen.

I’m hearing you say—and this is contrary to what I’ve been hearing from an awful lot of constitutional scholars and political observers this week, they’re all saying, no way, 25th Amendment is completely off the table, we can’t achieve that high bar. You are saying, well, we could achieve it this second way, and we should think very seriously right now about doing that. I’m not hearing you say it’s off the table until Congress changes hands or the president’s Cabinet wakes up. 

Well, it still requires the action of the vice president, so that in this context, that means that J.D. Vance is a necessary partner in any action to determine that there’s an inability of the president to conduct the duties of office. During this crisis, he was over in Hungary campaigning for Viktor Orbán’s reelection, and didn’t show much interest in what was going on back here, and he has been morally invertebrate since he’s been vice president. But at the very least, if we establish this body, that body could be acting on its own in order to bring attention to the situation.

My Republican colleagues on the Oversight Committee were adamant about writing to the presidential physician under Joe Biden. They wanted him to come and testify about Biden’s condition. So they have already established that they think it’s all right for Congress to be involved in trying to assess the fitness and medical condition of the president. So this is something that is obviously a matter of constitutional magnitude, and I do think that regardless of who’s president, this board needs to be set up.

We keep hearing, whispered over and over again, that one of the reasons Congress is so willing to hand over appropriations power, so willing to ignore boat strikes, so willing to wave away threats of war, is because of this fear that we hear, from all sorts of sources, that they’re in fear of real violence, violence directed at their families, their kids. You know better than anyone after Jan. 6: That fear is real. I find myself asking, is it your sense that what is leading to congressional inaction is some sense that stochastic terror or threats of actual violence and actual lawlessness directed at them is paralyzing Congress from acting? And if that is the case, we are not talking about a supine Congress, but rather a terrified Congress, and how can a constitutional democracy continue to function under those conditions? 

So much of the decisionmaking around Jan. 6 and the impeachment trial took place in the context of a fear of violence. And of course, Jan. 6 itself was this massive unleashing of violence and incitement to violence by the president against Congress, against the vice president, and against the constitutional order. That’s what Trump was impeached for in the House, because he had attacked the constitutional order. But as you say, there was a lot of fear on the other side, or a lot of misplaced loyalty to Trump. You know, the Framers contemplated that those of us in public office would counteract ambition with ambition, by which they meant we would stand up for our branch of government against the other guy’s branch of government. They had not anticipated partisanship overriding people’s loyalty to their own branch. I think Madison and Jefferson and Hamilton would be astonished that anybody in Congress would vote not to impeach or not to convict a president for inciting a violent mob to attack Congress itself, and to try to interfere with the peaceful transfer of power. The antidote to us operating from fear, whether it’s fear of mob violence or fear of personal attacks or fear of nuclear war or fear of what an out-of-control president might do, is for people to act with some courage and with some common sense, as much as possible across party lines.

Things Are Looking Quite Bad for Trump

So we’ve talked about the 25th Amendment. We’ve talked about impeachment. It seems to me the third curative here has to be voting, and it has to be, come November, that the people can make the change that would never enable this to happen again. And yet we know that this Justice Department has doubled down and doubled down again on its commitment to Donald Trump’s project of vote suppression, election subversion, preemptive denialism, and confusion, and causing real doubt about whether the next elections can be free and fair. And I wonder how you feel about the fact that under my categorization, Plan C—which is voting—Plan C is not as robust as we thought it would be.

Well, Plan C was always Plan A, in the sense that, constitutionally, the major check against an out-of-control government is to throw the bums out in the next election, and I’ve been spending my weekends out on the road campaigning for people around the country. Lots of Democrats are going out there to campaign and to build this landslide, and landslide conditions are forming around the country. That, I think, is what we cannot lose sight of. So much of what’s taking place within the Trump administration is an attempt to derail us from victory in November. But as you say, we’ve got to defend the election, and that’s why we have an army of very serious lawyers fighting all over the country. I mean, will they try to steal the election? Of course they will try to steal the election. They’re trying to steal it every day, when they close down precinct polling places in Texas, and when they throw people off the rolls in Georgia.

Now, I don’t think Donald Trump can snap his fingers or wave a magic wand and terminate the election. The president has no constitutional role or authority in the conduct of midterm congressional elections, or presidential elections. He’s just not part of it. It’s done at the state level, and Congress can legislate to alter the time, place, and manner of elections. But you know, the Democrats, even though we’re in a minority, we’ve got sufficient power to prevent mischief. We are going to have to be fighting. Winning the election is just half the battle. We gotta defend the election. But so far we’ve got great lawyers, people like Marc Elias, people like Democracy Forward, and State Democracy Defenders, and the ACLU and the NAACP Legal Defense Fund. And they’re fighting all over the country to defend our election. And then once we win it, we’ve got to look at how we really secure the right to vote, so we’re not constantly playing a game of catch-up against people who wanna suppress voting and sap the meaning out of the electoral process.

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Things Are Looking Quite Bad for Trump

Tell me what you say to people who say, and I’ve heard it many times, that if you are calling for impeachment or you’re calling for the 25th Amendment, then you’re just raising the stakes, you are increasing the likelihood that he’s going to steal the election or try to stay in power. By doing these things you are incentivizing him to behave more badly in the future. When you talk about removal, what’s the answer to that question? 

I certainly believe that impeachment and the 25th Amendment cannot be a fetish for us, because neither of them, as we’ve seen, is a panacea for what ails us. On the other hand, they should be no kind of constitutional, or political, taboo. They are part of the tool kit that exists, and we’ve got to think of them in terms of our strategy and tactics going forward. And we would never take anything off of the table. So I guess I would say it is important to be talking about the War Powers Act, to be talking about impeachment, to be talking about the 25th Amendment, to be talking about the First Amendment, to be talking about the congressional elections, and what comes after. The whole country has gotten an intensive education into the mechanics of the constitutional process. And that’s good. And then we have to act.

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