President Nancy Pelosi? President Steve Mnuchin?
As House Democrats’ impeachment inquiry heats up and new bombshell leaks rock the newspapers on a daily basis, normal people have one simple question in mind: What’s going to happen?
We, of course, don’t know what’s going to happen.
But what we can tell you is that there are roughly nine scenarios of varying degrees of plausibility that are legally and constitutionally possible. Some of these involve Trump being impeached and some involve him leaving office and possibly, but not necessarily, both of those things. Some involve Nancy Pelosi, Mike Pompeo, or Steve Mnuchin becoming president. In theory, Trump could even be booted from office and then run again for reelection in 2020.
It’s hard to know what’s going to happen in politics. Three months ago, nobody was predicting that the intricacies of the US-Ukrainian relationship would be at the center of American politics. If you had that kind of foresight, you owe it to the world to be humble about your ability to forecast the future.
One thing that jumps out of this analysis is that the question of whether Trump or Mike Pence will be in the Oval Office one year from now takes too limited a view of the stakes. There are a lot of different ways Trump’s presidency could survive, with very different implications for the future of American institutions and American politics. And there are a lot of different ways it could end, too, with equally important differences between them for the future.
1) Trump doesn’t get impeached
The House has not yet voted to impeach Trump. The big swing among House moderates was in favor of launching an “impeachment inquiry” not of impeaching Trump per se. And while impeachment has become much more popular among the public and now enjoys plurality support, it’s not yet at a majority level and it’s polling well below the roughly 54 percent of the public who say they disapprove of Trump. What’s more, because of gerrymandering most of the pivotal House Democrats hold seats that are 2-5 points more GOP-leaning than the nation as a whole.
Given that Trump is now openly soliciting assistance from foreign states it seems unlikely that House Democrats will just walk away. But it is possible.
The first-order consequence of this, of course, is that Trump will remain in office. But what’s more, Democrats getting cold feet about obstruction of justice after the publication of the Mueller report seems to have emboldened Trump to pursue the view that he was the victim of a vast international spy conspiracy. If they get cold feet again, Trump’s currently lame-sounding protests that the real crooks here are Adam Schiff and the intelligence community whistleblower will gain new life. Foreign states might also see Democrats essentially waving the white flag and decide that the smart money is now on doing what Trump wants and opening all kinds of politically convenient investigations into his enemies.
Failing to impeach would also, of course, infuriate the Democratic base and set off all kinds of intra-party fighting. It seems like an unattractive option for a variety of reasons, but until an impeachment vote happens, it’s definitely on the table.
2) Trump could be forced to resign
Richard Nixon is the only president to have been forced from office by scandal rather than death, but he’s not one of the two presidents who’ve been impeached by the US House of Representatives.
Instead, a delegation of Republican members of Congress — including the minority leaders of the House and Senate, plus conservative icon Barry Goldwater — came to the White House and told Nixon his support in Congress had evaporated. The leaders of both the Republican Party as an institution and the conservative movement were looking to safeguard their own long-term interests and not go down with the rapidly sinking Nixon administration. Faced with that reality, Nixon chose to resign.
The implicit deal worked out reasonably well for almost everyone involved. Nixon got a pardon from Gerald Ford for his crimes and, rather rapidly, worked his way back into respectability as a political and intellectual figure who would write books on statecraft. When he passed away, his funeral was well-attended by American and international dignitaries and then-President Bill Clinton delivered a eulogy. Republicans got hammered in the 1974 midterms, but Ford very nearly won reelection in 1976. Republicans cleaned up in the ’78 midterms, and in 1980 Ronald Reagan became president, cementing the conservative movement’s control over the GOP and ushering in a generation-long conservative dominance of American politics.
Both Nixon, the Republican Party, and the conservative movement in other words benefitted from the decision not to fight it out to the bitter end.
Nixon, of course, was a genuine party man who cared about things like the long-term future of conservative politics and his personal standing in polite society. It’s not at all clear that Trump shares any level of concern with things like that. What’s more, the rise of a powerful sector of semi-autonomous GOP propaganda media in the form of Fox News — something former Nixon aid Roger Ailes was inspired to create in part out of the recognition that Watergate could have played out very differently if the media ecology was different — creates some very different dynamics.
Nonetheless, it’s certainly possible that something like this will happen if the still-ongoing investigations reveal shocking new evidence that, for whatever reason, bothers Republican Party elites a lot more than existing revelations do.
3) Mitch McConnell could spike the trial
Senate Majority Leader Mitch McConnell has stated that his understanding of the Constitution and of US Senate rules is that he is obligated to hold a trial if the House votes articles of impeachment.
But it’s not entirely clear what that would mean in practice. For the Clinton impeachment trial of 1998, it meant something resembling a normal courtroom with oral arguments presented by House impeachment managers. The trial also featured sworn depositions by key witnesses, video excerpts presented by the managers. This, however, was a matter of choice for the Senate.
Impeachment hawks wanted live witnesses like you would see in a trial. Democrats had moved to have no witnesses at all. The depositions-and-excerpts gimmick was a political compromise reflecting the internal dynamics of the GOP Senate majority. Leadership and vulnerable members knew that impeachment was unpopular, and Clinton would be acquitted and wanted to get things over with fast. But conservative true-believers thought a vivid trial would turn public opinion around. What ended up happening was an effort to thread that needle.
A trial of Donald Trump would take place in a chamber controlled by his GOP allies. If it doesn’t suit their interests to have extended arguments and presentation of evidence, they don’t need to do that. A quick, party-line vote to acquit could be all we get. Given everything we know about Trump-era politics, this seems like one of the most likely scenarios.
4) A rigorous trial leads to a party-line acquittal
One has to assume that if Trump has his Senate caucus solidly behind him, its members will vote to greatly curtail the trial and move forward.
But, in theory, Senate Republicans could decide they want to go through a whole extended trial and then acquit Trump on a party-line vote. If that happens, then legally speaking nothing happens — Trump just stays president. Democrats might fall into infighting, arguing that if the party leadership had taken a different tactical approach (a broad impeachment inquiry rather than a narrowly Ukraine-focused one, for example) the outcome might have been different.
The main upside for Democrats, however, would be to pin the more vulnerable GOP senators very tightly to a president who is unpopular in their states. Right now, it’s fairly easy for swing-state senators to simply lay low and not say much. A full trial would force everyone to address the elephant in the room. And for that reason, it’s at least possible that a handful of Senate Republicans will break with Trump early if damning evidence keeps piling up.
5) Trump is acquitted despite an anti-Trump majority
Another possibility is that the Ukraine scandal ends up playing out somewhat similarly to the Affordable Care Act repeal where a small number of Republican senators joined forces with Democrats to secure a majority.
You could imagine the GOP’s vulnerable incumbents — Martha McSally (R-AZ), Cory Gardner (R-CO), and Susan Collins (R-ME) — plus occasional Trump critics Mitt Romney (R-UT) and Ben Sasse (R-NE) force a real trial and ultimately produce a majority vote in favor of conviction.
Except the Constitution requires 67 votes — not 51 — to remove a president, so that would count as an acquittal. Democrats would, however, regard the anti-Trump majority as an important moral victory and enjoy the intra-GOP infighting on the other side.
The basic political logic of this scenario makes a lot of sense. Right now, senators in states where Trump isn’t popular are standing behind him on outrageous and unpopular conduct, which is slightly bizarre. On the other hand, to vote to convict and remove Trump would be an extremely dangerous move for senate Republicans in its own right. Traditionally, presidents have taken an understanding view of vulnerable members’ practical political need to distance themselves from him, but Trump tends to demand loyalty and has a taste for vengeance.
6) The GOP splits and Trump is removed from office
This is a scenario where, in essence, the revelations around Ukraine (or perhaps new revelations about Trump’s discussions with the leaders of other foreign countries) send the political system back to where it was in the winter of 2015-2016.
Trump was popular with GOP primary voters back then but not overwhelmingly so. A wide range of GOP figures (including people like Lindsay Graham and Rick Perry who are now loyal Trumpers) were vocally critical of him. Most GOP donors and the leaders of Republican-aligned institutions were certain his nomination would lead to political distastes, and conservative media was much less solidly pro-Trump than today’s Fox News and Sinclair Broadcasting.
Under this scenario, Trump still holds on to his true base (the roughly half of GOP primary voters who backed him in 2016) but becomes so unpopular with the public that he suffers mass defections from GOP senators leading to his removal from office.
For obvious reasons, it’s difficult to imagine this happening. The Republican establishment didn’t like Trump and doesn’t like everything he does, but he’s fundamentally delivered for them on all their key priorities. As long as that continues to be the case, it’s hard to see why they would turn on him — even though all things considered they, on some level, would prefer Mike Pence. In the event of an establishment coup, one possibility is that in theory Trump could turn back around and run for president again. But the senate also has the constitutional authority to disqualify an impeached president from running for office again — authority they would almost certainly use to ensure that Trump doesn’t primary President Pence.
7) Pence is complicit and he’s removed too
One reason Watergate ended up working out so badly for Nixon is that, sort of by coincidence, his original vice president had been driven from office by an unrelated scandal. Consequently, at the time of maximum peril for Nixon, the VP was Gerald Ford — a well-regarded Republican who genuinely had nothing to do with the Nixon White House or any of its crimes.
By contrast, Pence — like other modern VPs — is himself a senior member of the Trump administration.
As such he appears to have been at least somewhat involved in the execution of Trump’s corrupt Ukraine policy, and he’s deeply involved himself in the defense of Trump’s misconduct. That means in principle the Senate might decide he’s guilty too and remove both Trump and Pence, thus making House Speaker Nancy Pelosi president.
8) The Presidential Succession Act Might Be Unconstitutional
Every president who has ever left office before the end of his term has been duly succeeded by the incumbent vice president.
But according to the US Constitution, in the event of a double-vacancy the Constitution states that “the Congress may by law provide for the case of removal, death, resignation or inability both of the president and Vice President, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected.”
Congress’s most recent effort to so provide was the Presidential Succession Act of 1947 (lightly modified in subsequent years to include new cabinet secretaries), which holds that priority goes to the speaker of the House, followed by the president pro tempore of the Senate, followed by the secretary of state, and then on down the list of cabinet officers. Now obviously in the real world, it’s essentially inconceivable that congressional Republicans would remove both Trump and Pence and hand the White House to Pelosi.
But there’s a catch!
Many scholars believe that the speaker (and the president pro temp of the Senate) as a member of Congress is not an “officer” under the meaning of the Constitution. It might be good for the Supreme Court to offer its view on this before it needs to be litigated in the middle of a huge national crisis, but America’s top court does not offer advisory opinions choosing instead to rule only on actual controversies. So we’ll never find out if the court will strike this provision down until it actually happens. But suffice it to say it might, in which case Secretary of State Mike Pompeo becomes president.
9) President Steve Mnuchin
The problem with the President Pompeo scenario is that he’s implicated in the scandal even more clearly than Pence.
He was on the infamous call with Ukrainian President Volodymyr Zelensky. But feigned ignorance about it and only later admitted he was on the call after press reports exposed him. He used to be all for Congressional oversight of the State Department when he was in the House and now says questions about the administration’s conduct toward the European nation amounts to “bullying.” And instead of standing by the ambassador to Ukraine, he let the president recall her seemingly for personal reasons.
If by some remarkable turn of fortune, Congress decides it needs to purge everyone involved with the scandal then it’s going to need to remove Mike Pompeo.
That means Treasury Secretary Steve Mnuchin becomes president.
Mnuchin engaged in a fair amount of implausible and disingenuous pro-Trump spin on Sunday talk shows but does not appear to have actually done anything wrong with regard to the Ukraine situation. In fact, the Treasury Department has rolled out a series of Ukraine-related sanctions on Russian individuals and entities, and as far as we know, that program never got mixed up in Trump’s bribery and shakedown schemes.
When Mnuchin emerged during the 2016 campaign as a major Trump bundler, it struck many people acquainted with his record as a banal Wall Street free marketer as somewhat bizarre. But he told Businessweek during the campaign, “Nobody’s going to be like, ‘Well, why did he do this?’ if I end up in the administration.” And if he somehow ends up as president, well then he definitely will have the last laugh.
Author: Matthew Yglesias