Documentary Reveals Potential for Constitutional Lawfare
Sometimes removing a controversial issue from its current context allows viewers to see things from a better, and more detached, historical perspective. Two assassination attempts against Donald Trump, and myriad investigations into his conduct, have raised issues about lawfare and presidential succession — but most Americans’ views on the same have much to do with their views about Trump.
For this reason, a new documentary on the vice presidency gives a fresh perspective on the complications of American governance. Examination of prior events surrounding presidential succession — ones in the not-too-distant past — provides for speculation on how bad behavior by elected officials could lead to prolonged “lawfare” and a constitutional crisis.
Constitutional Amendments
The documentary, which premiered just before the vice presidential debate earlier this month, begins innocently enough. It examines the paucity of time the Constitution’s framers spent pondering the vice president’s role at the Philadelphia Convention of 1787, how the controversial election of 1800 led to the 12th Amendment, which allowed for the election of a president and vice president on a party ticket, and the legacy John Tyler established when he assumed the presidency from William Henry Harrison upon Harrison’s death in 1841, creating a succession precedent that the country would need to rely on far too frequently.
As the United States took a more prominent role on the world stage in the middle of the 20th century, issues of presidential succession likewise took center stage. Dwight Eisenhower’s lengthy convalescence after a series of health scares in the mid-1950s prompted concerns about presidential incapacity, an issue nowhere addressed in law.
Following John F. Kennedy’s assassination in 1963, Lyndon B. Johnson’s first address to Congress raised a related issue. At the time of Johnson’s speech, the elderly individuals behind him on the dais — the 71-year-old Speaker John McCormack, D-Mass., and an 86-year-old Senate President Pro Tempore Carl Hayden, D-Ariz., — stood first and second in the presidential line of succession. With the Cuban Missile Crisis fresh in Americans’ minds, people realized that the vice presidency could no longer just stand vacant — as it had, according to the documentary, for more than 36 of the Constitution’s first 180 years — when its occupant succeeded to the presidency.
The result of those deliberations surrounding presidential succession and incapacity came in the form of the 25th Amendment, which went into effect in 1967. It codified the Tyler precedent of 1841, that the vice president automatically becomes president, allowed for the confirmation of a replacement vice president by both houses of Congress, and permitted the president voluntarily to hand over his duties temporarily.
Traditionally, Section 4 of the 25th Amendment, which allows the vice president and cabinet members to declare the president unable to serve, has proved the most controversial. Despite arguments that the cabinet invoke it against Ronald Reagan and (more recently) Trump, the provision has never been implemented or tested.
Lawfare in the Executive?
But the PBS documentary alludes to other opportunities for constitutional mischief. Consider this quote from the film about events surrounding Watergate in the early 1970s: “[President Richard] Nixon’s Justice Department was actively pursuing forcing [Vice President Spiro] Agnew from office.”
The film portrays this action as almost heroic and noble because Nixon “knew it was likely that he himself would be impeached or forced to resign, knew that it would be a disaster if Agnew were to succeed to the presidency.” But on the other hand, the executive branch had taken it upon itself to investigate — and ultimately try to remove — the only person other than the president elected by the entire nation. Could another president try to weaponize the Justice Department against his own No. 2?
Consider too the converse scenario, whereby Nixon actively tried to cover up Agnew’s misdeeds and ordered the Justice Department to stand down its activities. One could see a Machiavellian logic in such a move: If I keep Agnew in office, Congress won’t be able to impeach me — they couldn’t stand the thought of making Agnew president.
Ultimately, Agnew agreed to resign as part of a plea agreement, and Nixon nominated Rep. Gerald Ford, R-Mich., then the House minority leader, as vice president. Ford’s nomination received strong bipartisan support in both houses of Congress, and he eventually succeeded Nixon as president when the latter resigned in August 1974.
Conflicts and Character
But here too, events could have gone awry. Nixon could have nominated unacceptable candidates for vice president — for instance, segregationist former governor and presidential candidate George Wallace, D-Ala., — knowing Congress would reject them. If Nixon’s maneuvers had kept the vice presidency vacant into 1974, would Republicans have dared to impeach and remove him from office, knowing that the next person in the line of succession was a Democrat, House Speaker Carl Albert of Oklahoma?
Albert later recalled that, when discussing the vice presidential nomination after Agnew’s resignation with Nixon, he and his fellow congressional leaders had given the president “no choice but Ford.” As Rachel Maddow (of all people) notes in the documentary, that was a magnanimous move by Albert, who could have tried to use the corruption charges against both Agnew and Nixon to wangle himself into the presidency — a hypothetical scenario she rightly described as a potential “partisan coup.”
The conflicts of Watergate ended peacefully with Nixon’s resignation 50 years ago. But the documentary alludes to, but doesn’t fully explore, other scenarios that could have become far more prolonged, bitter, and even bloody.
Unfortunately, those possibilities seem inherent in any government formed by mortal, fallible men. As the film notes, the authors of the 25th Amendment “were trying to imagine everything, but truth is always stranger than fiction.”
No constitutional structure can know or predict every possible scenario that leads down the road of autocracy and anarchy. For this reason, Ben Franklin reportedly told a passerby at the end of the Constitutional Convention that the delegates had created “a republic, if you can keep it.” It falls on all of us — each successive generation of Americans — to rise to Franklin’s challenge.
This post was originally published at The Federalist.