Unprecedented constitutional crisis? Hardly … The U.S. has been here and done this before

Regardless of the latest events and revelations, the investigation by former FBI Director Robert Mueller, as well as the various House and Senate probes will take time. Let the process work without interference or unrealistic partisan expectations. Nevertheless, these legal proceedings will have to navigate through the political obstructions and smokescreens that are daily occurrences on both sides of the aisle. We must be patient and let the investigators shine light on, at the very least, the highly questionable acts of our president, our vice president and the members of their administration and/or campaign and transition teams. Let the investigators take the appropriate time to reveal the truth, regardless of who is involved or affected. It is apparent that the Mueller investigation is concentrating on the role of Russia in the 2016 election, as well as improprieties committed by key members of the Trump campaign, transition team and administration, and the possible obstruction of justice by any and all of them. This investigation may lead to the president himself being indicted or having a report submitted to the American people and Congress, that leads to Articles of Impeachment. It is also possible that the vice president will be implicated in the findings of the investigation.

However, it is also possible that the investigations will not touch either the president or the vice president, and that this article is an academic exercise in “what if… ,” and for that I have no apology. On the other hand, if it becomes apparent over a period of time that both the president and vice president must be replaced, this article shows that America has a clear and tested path to do so.

Commentators will argue that during these highly fractured times, the United States will not be able to withstand the political disruption and the shock of having an elected president removed from office, either by resignation or impeachment, and/or the possibility that the elected vice president will be forced to vacate his office as well. They will argue that the fear of the unknown will traumatize and do tremendous damage to the fragile state of our democracy, and lead to a further deterioration of the people’s trust in government. The problem with these arguments is that, in fact, there is absolutely nothing to fear; this is not unknown territory. Rather, our United States has experienced these circumstances before, when we held our highest leaders accountable under the law, and our democracy actually emerged stronger as a result.

With the plea deal struck between former national security adviser General Michael Flynn, and Special Counsel Robert Mueller and his team, Trump’s inner circle, from the time of his candidacy, through transition and his assuming office, has been penetrated. It remains to be seen how far up the rope this flame of impropriety, which may include treasonous acts, will burn. The fact that Flynn worked intimately with both Trump and Mike Pence, and with the vice president-elect when he headed Trump’s transition team, potentially means that the president and vice president could be facing serious legal jeopardy, the consequences of which could lead to the removal of both of them from office by resignation or impeachment.

One would think that such a situation would be unparalleled in the history of the United States, except for the fact that we have gone through this exact scenario before, and not that long ago. We only need to look back 45 years at the two men who were on the 1972 Republican presidential ticket for guidance. President Richard M. Nixon and Vice President Spiro T. Agnew were elected in a landslide over the Democratic ticket of Sen. George McGovern and Former Peace Corps Director Sargent Shriver. On Nov. 7, 1972, despite Watergate storm clouds gathering, the citizens of 49 of the 50 states, voted to return Nixon and Agnew for a second four-year term as our national leaders. History tells us that neither the elected president nor the elected vice president served out their terms. On Oct. 10, 1973, Agnew resigned from office after pleading “no contest” to a charge of tax evasion, which arose out of a comprehensive investigation into Agnew’s financial dealings while serving as the governor of Maryland.

Upon Agnew’s resignation, the United States was without a vice president. However, only six years before, the 25th Amendment to the Constitution was adopted which, among other things, prescribed the process to fill a vacancy in the office of vice president. The assassination of President John F. Kennedy and questions about President Lyndon B. Johnson’s health, along with the tumultuous decade of the 1960s, led to a renewed urgency in clarifying how a vacancy in the vice presidency should be addressed. The 25th Amendment was adopted on Feb. 10, 1967 as a result of, and to clarify the ambiguities found, in Article 11, Section 1, Clause 6 of the Constitution. The 25th Amendment of the Constitution, Section 2, states, “Whenever there is a vacancy in the office of the vice president, the president shall nominate a vice president who shall take office upon confirmation by a majority vote of both Houses of Congress.”

On Oct. 12, 1973, Nixon, using the newly adopted Constitutional Amendment for the first time in our country’s history, nominated House Minority Leader, Rep. Gerald Ford to serve as vice president of the United States. On Nov. 27, 1973, his nomination was confirmed by a majority in the Senate and on Dec. 6, 1973, he was confirmed by a majority of the House, pursuant to the 25th Amendment, Section 2 of the Constitution.

On Dec. 6, 1973, Ford took the oath of office to serve as 40th vice president, and served as such until noon on Aug. 9, 1974, when he succeeded Richard Nixon as president of the United States. Nixon resigned on this date as a result of the black hole of the Watergate scandal, and his impending impeachment vote before the full House. Upon Ford’s ascention, the United States was again without a vice-president.

Eleven days later, on Aug. 20, 1974, President Ford, pursuant to the 25th Amendment, Section 2, (which amazingly, was used twice within a one-year period), nominated Nelson Rockefeller, the former governor of New York, to serve as the 41st vice president of the United States. He was confirmed in the Senate on Dec. 10, 1974 and confirmed by the House on Dec. 19, 1974. Rockefeller was sworn in as vice president later that day. Interestingly, President Ford, at the 1976 Republican National Convention, facing Ronald Reagan’s intra-party challenge for the nomination, would replace Rockefeller on the 1976 Republican ticket with Sen. Robert Dole. Ford made this move seeking to appease conservatives within the GOP. Ford, Dole and Rockefeller campaigned extensively in the Fall of 1976, but lost a close race to the Democrats’ ticket of former Gov. Jimmy Carter of Georgia and Sen. Walter Mondale of Minnesota. Ford and Rockefeller served out their remaining terms until Inauguration Day, Jan. 20, 1977. Thus, the terms of the first president and vice president, not elected by the people came to an end. Since that day, the United States has had presidents and vice presidents who were elected by the people, and each have served out their complete terms.

During this politically dangerous and uncharted period of 1972 to 1974, America’s constitutional foundation, its political process and democracy itself prevailed. Two individuals, who had been elected a short time before, were removed from the highest political offices in our land and the Constitution and the people were stronger for it.

At the current time, we potentially face the same pathway in an attempt to restore integrity and trust to our American Democracy. If President Trump vacates his office, Vice President Pence would automatically become president, according to practice established first by the “Vice President John Tyler Precedent” (1841) and now, pursuant to Section 1 of the 25th Amendment to the Constitution. If Pence is disqualified from holding the office of president, Speaker of the House Paul Ryan, a Republican from Wisconsin, would become president, pursuant to the Presidential Succession Act, as amended in 2006. In the event Ryan succeeds to the presidency, the 25th Amendment, Section 2, would again be invoked (for the third time) to select a vice president to replace Pence. Ryan is well known and respected throughout the United States. Representative Ryan ran for vice president on the Republican National ticket with Mitt Romney in 2012. In October of 2015, after Speaker John Boehner resigned, Ryan was elected as 54th Speaker of the House. While the Republican Party is ideologically conflicted at this time, and over the past 11 months we have seen that the party is rarely united behind the Trump administration, Speaker Ryan is known to represent a practical, conservative ideology within the Republican Party. He is one of the few Republicans who has the ability to bridge the divide between the Tea Party/Freedom Caucus and more moderate rank-and-file Republicans. There is no doubt that if he were to become president, he would nominate a vice presidential successor who would be more reflective of a traditional Republican ideology than either Trump or Pence. In this case, President Ryan’s nominee to assume the office of vice president of the United States would invariably look to assuage Trump supporters, but not necessarily have to address Trump’s hard core base.

At the present time, the Republican Party controls the House of Representatives and the United States Senate, so it stands to reason that the nomination of a qualified vice president would be speedily confirmed. In 1973 and 1974, the Democratic Party controlled both the House and Senate. Both times, the Democrats, faced with the critical task of confirming a vice president, acted with deliberate speed. Ford’s confirmation took 55 days from his nomination to his taking the oath of office; Rockefeller’s confirmation took 121 days.

If these events take place, it will be the second time in our country’s history, and the second time in many of our lives, that the president and vice president will not have been elected by the people. However, as we saw in the early 1970s, our democratic system is based on the Rule of Law. It is designed so that no one person is ever above the law, and our system of government is not dependent on any one individual to maintain its legitimacy. Our constitutional form of government is designed to withstand extreme stress and ensure that the bedrock principle of “by the people and for the people” prevails over the personal interests of any elected official, especially if it is the president or vice president of the United States. We are at the point in the investigations where it is becoming highly possible that the president will be removed from office. His vice president may not be far behind. Our Constitutional system and our political system is resilient. Our Democracy can emerge from this very divisive period and become far stronger, with new leaders chosen under a system provided for in the Constitution. Let the process play out, and trust that America will emerge stronger as a result, but at the same time, let us recognize that when our Democracy is threatened, we have the ability to root out the problem and move forward in an orderly and deliberate manner.

This Op-Ed was published in the Standard-Times on Dec. 17th, 2017 – HERE