Osler's Razor

What If Napoleon Had a B-52? Or Trump Was Convicted By the Senate?

By Mark Osler

         In 1978, an early (and funny) Saturday Night Live bit played out an answer to the question “What if Napoleon had a B-52 bomber?” Spoiler alert: things went better for him at Waterloo. Only a few weeks ago, that possibility was as laughable as the possibility of Donald Trump’s removal from office through impeachment by the House and conviction by the Senate. But as events unfurl, the still-slim chance of that outcome grow larger.

         Which means it is becoming worthwhile to consider the events that might follow Trump’s conviction. What happens next might be stranger than you thought, with Donald Trump running for president against Mike Pence, and a constitutional standoff over a vacant vice-presidency. Intrigued? Me too. The chaos might rival that which might have been created by Napoleon’s B-52, and it is all directed by a handful of rarely-examined clauses in the Constitution.

         If Trump were convicted in the Senate, two wild and crazy provisions of the Constitution will come into play. These are laid out in the original language of the document, which covers impeachment in a few places. First, Article II, §4 provides that if the president is convicted in the Senate he “shall be removed from office.” Simple enough. But the twist comes in Article I, §3, which separately provides that punishment can’t “extend further than” removal from office and disqualification to hold any office in the future.

         Read together, these provisions say that removal from office is mandatory if a president is convicted in the Senate, but barring the convicted president from seeking office is an optional punishment at the discretion of the Senate. That means that the Senate could conceivably convict President Trump, triggering his removal, but not bar him from future office. Vice-President Mike Pence would ascend to the top spot, and presumably have the inside track for the quickly-coming 2020 nomination. But, one can easily imagine Donald Trump, now pushed out and angry, running in the Republican primary or as an independent against his own former running mate. He’s not going to go live in a van down by the river, after all.

         And the craziness would not end there! Hidden away in the 25th Amendment is a provision that gives the House of Representatives a veto on the choice of a new vice-president. Since the House of Representatives is controlled by Democrats, that could be a circus. What person in existence could meet the approval of both Mike Pence and the House?

         The 25th Amendment was passed in the wake of the assassination of John F. Kennedy and addresses presidential succession. Prior to that amendment, the Constitution was silent on succession other than the vice-president succeeding the president. There was no provision for picking a vice-president after that succession, though-- and several times the office of vice-president remained vacant for years, until the next presidential election.

         The 25th Amendment fixes the problem by requiring that when a vice-president ascends to the presidency due to a death, impeachment or resignation, the new president shall nominate a vice-president "who shall take office upon confirmation by a majority vote of both Houses of Congress." In other words, if Mike Pence becomes president because of impeachment or resignation of the President, he would then have to find a vice-president that would meet the approval of the Democrats who control the House of Representatives-- knowing that the nominee will become a part of the administration and possibly become the new president (for example, if Pence in turn is impeached).

         And that’s not all! As if we need more cowbell...

         If Donald Trump was removed from office, Article I, §3 of the Constitution allows that he would then “be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.” In other words, under the plain language of the Constitution, he could be charged in federal court. And tangled up in all of that might be a Trump self-pardon (issued before he was pushed out), of questionable constitutional validity. Mayhem!

         So where does that leave us? In chaos of course: It is possible that as we await the return of David S. Pumpkins in October of 2020, we could find ourselves in the midst of a three-way battle for president between Mike Pence, Donald Trump, and whatever Democrat survives the primaries. Candidate Trump would be out on bond during the campaign, perhaps with an electronic monitor strapped to his ankle. And Trump would have a new running mate, of course (imagine the possibilities! Ivanka? Sean Hannity?). And all the while, Congress and Pence would be trying to find the last moderate standing in Washington to install as vice president for the next few months—even as Pence’s running mate campaigned to fill that spot beginning in January of 2021. It would be like watching an epic car crash. 

         I don’t mean to be a complete Debbie Downer, though—there is a significant bright spot to all of this. Resolution of either crisis would require an employment of national virtues we currently struggle to embody: compromise and healing. If a newly-ascended President Pence were to get a vice-president approved by both houses of Congress, he would have to track down that rarest of species: an accomplished moderate who is respected by both sides. And Trump running for president—and likely losing—might stave off some form of the “civil war” he has threatened, or at least convince his supporters that there is a reason to stand down.

         The Constitution, even when it creates a modicum of chaos, has tended to push us to be our better selves. The future may tell us if that is still true.