A ticking time bomb in our Constitution may be exposed should the Trump administration be enveloped in a major scandal leading to impeachment proceedings.
The provisions to remove a president from office are not equipped to handle a major situation where the wrongdoing also encompasses the vice president or calls the legitimacy of the presidential election into question.
Most basically, the Constitution provides that the House can impeach and the Senate may remove from office any public official. The process still works reasonably well for federal judges who have committed extreme wrongdoing. But it is poorly situated for use against the president in the modern era.
{mosads}If a president is removed, the vice president becomes president and completes the remainder of the term. This is fine under the original circumstances for which the Constitution was written. Back in the eighteenth century, the president did operate mostly as a solitary figure, and the vice president was not only primarily the president of the Senate but would have been a rival candidate for the presidency. This system did not anticipate a vast executive branch machinery and a vice president who would be a political ally of the president and active, loyal player in the administration.
Thus, our Constitution’s succession procedures are ill-equipped to deal with a situation where the vice president also is tainted — a likely scenario in future executive scandals. To be clear, there is no evidence implicating Vice President Mike Pence in the scandal over Russian meddling in the 2016 elections, or any other White House scandal for that matter. But just imagine If President Donald J. Trump were impeached and removed over the Russia election-meddling scandal, or some other wrongdoing, and the vice president were also found to have had some level of involvement.
When Gerald R. Ford assumed the presidency after Watergate, he famously proclaimed that the Constitution worked. It did, but only because of a lucky break. Ten months before President Richard M. Nixon resigned, Vice President Spiro Agnew resigned because of an unrelated bribery scandal. Ford not only was universally respected for his integrity, but he had not been a part of the administration when it committed wrongdoing. Thus he was a safe choice to succeed Nixon. Had the ethically challenged Agnew remained in office, the situation would have been extremely complicated.
In the case of Bill Clinton, he was impeached due to his misleading testimony about a sexual affair. Had he been removed from office, not even his harshest critics could have reasonably said that Vice President Al Gore was part of the scandal.
Eventually, though, an administration-wide scandal will imperil both a president and vice president. We would do well to plan for such a scenario.
One simple change Congress should make is to revisit the Presidential Succession Act. Currently, the next two figures in line to fill a presidential vacancy are the speaker of the House and the president pro tempore of the Senate. This is decidedly less than ideal.
First, a member of Congress derives his or her authority from a regional mandate. Second, it creates major separation of powers issues. Third, it overturns a national electoral mandate if the House speaker is from the opposition party. Fourth, the president pro tempore in the modern era is selected essentially for being elderly, which is not a great characteristic for an emergency replacement.
Congress should restore the succession line that existed from 1886 to 1947, which makes the secretary of State third in line to the presidency. On top of eliminating the problems with the current line of succession, laws heavily restrict the political involvement of the secretary of State, making him or her the least likely senior administration official to be involved in a scandal.
Beyond that, it is worth noting that until 1886, the law called for a special presidential election if the presidency and vice presidency both became vacant. Such a situation should be reserved for a severe emergency — unlike in a parliamentary system — but some provision to accomplish this would be advisable, in case of a widespread scandal that delegitimizes the government or calls the election result into question where a new election might be the only acceptable solution.
The current time bomb ticking within our Constitution needs to be addressed before some major future scandal envelopes the system.
Whet Smith is an attorney and former GOP nominee for the Texas state assembly. Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University and author of the book “Executive Privilege.”
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