Little noticed during yesterday’s bizarre storming of the Capitol building by armed and violent Trump-incited American “brownshirts,” was the fact that National Guard troops, called for by Washington’s mayor, but not authorized by President Trump, were finally authorized by Vice President Pence.
The significance of this chain of authority cannot be understated.
The control of the U.S. military is one of the, if not the greatest power of a U.S. president, who is also designated as the commander in chief of the U.S. military in the U.S. Constitution. The Vice President under the Constitution, only has two jobs: Taking over the role of president if the actual president is permanently or temporarily unable to perform that job; and serving as president of the Senate. (The significance of that latter function, normally ceremonial, will soon become far better understood as Vice President-Elect Kamala Harris, currently, a senator from California, becomes Vice President Harris and starts providing the 51st Democratic vote in the Senate, handing Democrats control of that legislative body).
While arguably, President Trump has been progressively losing his marbles as his presidency crumbles, most recently engaging in thug-like abuse of power and trying to pressure a Georgia secretary of state to help steal the election from American voters in that state, and inciting what some are calling an act of treasonous insurrection in the halls of Congress, no legal or political action has been taken to try and oust him from office. There are now calls from Democratic and Republican legislators as well as in the media and by many major leaders of U.S. businesses including the Jay Timmons, president and CEO of the 14,000-company National Association of Manufacturers, for Pence and the White House cabinet to activate Article 25 for removal of the president, an impeachment resolution is being drawn up by Rep. Ilhan Omar (D-Minnesota), but to date no actual action has been taken on either of these measures. Legally then, President Trump, sane or mad, seditious and criminal or not, remains the President of the U.S. until his term of office ends at noon on Jan. 20 when President-Elect Joe Biden takes the oath of office.
This means that Vice President Pence remains simply vice president, with no authority to order U.S. troops to do anything, no ability to sign executive orders, no authority to sign Congressional bills into law. Nothing.
And yet, in a situation where the Capitol Police force and Washington DC’s police force were overwhelmed by a mob that stormed the Capitol building forcing the evacuation and lockdown of both houses of Congress, with members of both parties cowering in their offices or behind seats in the halls of their respective chambers as outnumbered police hunkered down with weapons drawn hoping to prevent mayhem, and in one case shooting and killing a female invader of the building, the vice president acted.
While President Trump was still praising the actions of the mob he had incited to march from the Ellipse to the halls of Congress to defend his fictional landslide victory” in the November 3 presidential election, and was blowing off the request for National Guard activation from the city’s mayor, Pence phoned the Pentagon calling for that activation.
Normally, it is the governor of a state who has the authority to order that state’s National Guard — all part-time soldiers — into action in an emergency, whether civil unrest or natural disaster. But as Washington, DC is not a state, but rather a municipality under federal authority, and thus has no governor, its small National Guard unit has to be activated by the Pentagon on presidential authority.
President Trump, who made no secret of his penchant for and fondness for National Guard troops to play an active role in putting down Black Lives Matter protests around the country over the past year, and also during his controversial photo-op outside the White House last spring when he ordered the violent busting up of peaceful protestors in and around Lafayette Park outside of the White House, in this historically unprecedented mob assault on the Capitol building by thousands of thugs invited to the Capital by Trump himself, he did nothing.
What is the significance of Pence’s action?
Well, I would argue that it, together with the Pentagon military brass’s willingness to follow that order and approve activation of the District of Columbia Guard unit without obtaining President Trump’s approval, effectively means that President Trump is no longer the country’s commander in chief. His authority has been passed, by default, to Pence.
This is important. At this point, with just two weeks to go in the Trump presidency, the only two things that the president could theoretically still do that would have serious and lasting consequences, are: 1) pardoning criminals who should be indicted (think himself, his attorney Rudy Giuliani, his attorney general, his complicit advisors and cabinet members, and others who have enabled and covered up his constitutional and statutory crimes while in office or turn state’s witness against him in future indictments), and 2) launching a war.
There’s not much that can be done to stop further pardons by the president short of his quick removal from office, since presidential pardon power is specifically enshrined in the Constitution. But by already acceding to his order, the top ranks of the military have made it clear that in their view, the vice president is the person to listen to when it comes to orders for military action.
If President Trump, who reportedly in mid-November after losing the election, was pushing for military action against Iran, only to be dissuaded by military and civilian leaders unwilling to see a war started only weeks before the transition to a new president and commander-in-chief, were to order an attack now, either against Iran or perhaps somewhere along China’s coast, in order to create an international crisis, it seems clear that the military at this point would now turn either to Pence or to the now confirmed President-Elect Biden, neither of whom would permit such an action.
The game, in other words, is over for Trump.
He may still officially be the president, but he is no longer the nation’s de facto commander in chief.
His recent and any future executive orders will be ignored or in any case, will be quickly reversed either later in the day on Jan. 20 or on Jan. 21 by the next president.
What happens after that remains to be seen. President Biden, no radical progressive by any stretch of the imagination, will have the narrowest possible margin of political control of the U.S. Senate, and given the conservative bent of several members of the Democratic caucus, notably Sen. Joe Manchin (D-West Virginia), may need the support of less conservative Republican senators to get the needed 51 votes to pass some legislation or to win confirmation of federal judges. Similarly in the House, where Democrats begin the new Congressional session with a shrunken 11-seat majority, passing significant legislation like a major economic stimulus bill, changes in the tax laws, shoring up Social Security, etc., will be a challenge.
But at least we can rest easy knowing that after the fiasco of Trump’s brownshirt invasion of Congress and his ham-handed mob-boss-like attempt a few days earlier to pressure Georgia’s secretary of state to “find 11,780 votes” needed to reverse Biden’s winning of that state’s 16 electors, will not be repeated.
Trump is history. Ugly history to be sure, but history.
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