There’s a bunch of chatter about imminent action by the special prosecutor. Some of that chatter suggests evidence of a real tie with Russia during the election. By “real tie” I mean more than that the Russians tried to help. A “real tie” would be real evidence of a conspiracy between the Trump campaign and Russia.
I don’t know if I believe it. I certainly haven’t seen clear evidence of it. And I don’t think it’s appropriate to speculate about whether there is clear evidence of it or not. But I get tons of emails from people asking, “what if there was a conspiracy?”
It’s a fair question. We ought to have a clear answer.
This “if” has got to be specified very precisely. The question is not whether Trump obstructed justice, or is guilty of tax evasion, or has violated the Emoluments Clause or done any other act justifying impeachment. The “if” here is quite specific: It relates explicitly to the validity of the election. The question I’m asking here is what should happen if Trump conspired with a foreign government to get elected? If he did that, then what should happen.
If that is shown, then the first step is obvious. Trump should resign or, if he doesn’t, he should be impeached.
The second step should be obvious as well: Pence should resign or, if he doesn’t, he should be impeached. He benefited from the criminal (and treasonous) conspiracy just as much as Trump. He shouldn’t benefit even more by becoming the residual President.
Under the law as it is, this leaves Paul Ryan as President. And the hard moral question that Ryan would then face is whether he should remain as President. By hypothesis, we’re assuming the office was effectively stolen from the legitimate winner by a criminal and treasonous act of the (previous) leader of Ryan’s own party. Ryan’s being President is just the fruit of that poisonous tree. So should he just ignore that? Or should he acknowledge the wrong, and act to make it right?
There’s no mechanism in American law for a new election. Nor is there a mechanism for correcting the criminal results of the previous election. The Electoral College was meant to be the check, but most in the chatterati resisted the idea of the Electoral College exercising a substantive check, and insisted that its vote must be automatic. So, constitutionally, we’ve passed the moment when this crime could have been constitutionally corrected. And no court is going to step in and do anything about it now, regardless of what the evidence now proves.
But that doesn’t mean this crime couldn’t be fixed politically. And recognizing just how it could is something we should be talking about right now.
President Ryan would have the right to nominate a Vice-President. That right is specified in the 25th Amendment. That nominee then becomes Vice-President once confirmed by a majority of both houses. That’s how Gerald Ford became Vice President. And that’s how he eventually became President without ever running for that office.
If Ryan became President because the Trump/Pence campaign committed treason, who should he nominate as his Vice President? The answer seems unavoidable: He should nominate the person defeated by the treason of his own party, and then step aside, and let her become the President.
Of course, this is the sort of thing that’s unimaginable in Washington today. But that’s why we need to start imagining it, now. The nation won’t have months to deliberate the matter in the urgency of a treason-driven impeachment. It’s the sort of truth we should have resolved to long before it is needed.
And it is the sort of truth we all should embrace: If you steal an election, neither you or your party should benefit from that theft. Even more so if you steal it in conspiracy with a foreign government. Everyone should be able to agree with this fundamental principle. The only question then is whether that principle would guide in this particular case.
Without doubt, if Ryan did the right thing, that would be the most extraordinary event in the history of America since the Confederate Army fired on Fort Sumter. But unlike that, this event would build the union, not divide it. And if he did it, then Clinton should embrace the spirit of cross partisan decency and nominate Ryan, or a Republican, as her Vice President. At least for the balance of her first term, the frame of adults-behaving-like-adults could live.