Does chain of command ever get interrupted?
May 11, 2017 8:51 AM   Subscribe

If an American president is found guilty of election fraud and impeached, would his appointed cabinet still stand?

That is, if the reason he is impeached is because it is found that he got to office using illegal means and that his election is thusly invalidated, wouldn't that mean that appointments that resulted from the election are also sullied? Is there any law that addresses something like this? Our past examples involve the president doing something wrong once in office, but if the getting to the office part is what he is in trouble for, I think that it would be wrong for the usual chain of command (put in place by the president) to activate. This is half liberal fantasy dreaming and half sincere.
posted by LKWorking to Law & Government (12 answers total) 3 users marked this as a favorite
I may have said it over on the Blue, but I know I've said it IRL that I'm about 75 percent sure there will be a case argued before the Supreme Court by 2025 that will hinge on the question of whether a Trump-era decision or regulation or law is valid simply because quote-President-unquote Trump was involved.

However, Nixon was about to be impeached for (among other things) bugging the DNC HQ, a patently election-fraud sort of crime, but no one seriously considered that Nixon's entire presidency was illegitimate or that Ford couldn't legally be the chief of the Executive Branch. So I don't think it'll really happen when Trump is perp-walked out of the Oval Office.
posted by Etrigan at 9:18 AM on May 11, 2017 [10 favorites]

No, for a lot of reasons, but most particularly because Presidential succession is the main thing that keeps our democracy non-violent. The instant you have people fighting over who is the legitimate successor, you have inherent instability and violence.

It's possible everyone who criminally colluded with Russia would be removed, but that would still leave a lot of the cabinet.
posted by corb at 9:23 AM on May 11, 2017 [9 favorites]

This is entirely speculative, but I would think that all appointments and all orders would stand, on the basis that they were all made validly and in good faith at the time. That may be a bit of a legal fiction, but it's a convenient way to proceed for everyone. There would be carveouts to that for obvious exceptions.

The alternative would be to say that any act done by an illegitimate President is also illegitimate, under a kind of fruit of the poisonous tree doctrine. And that would be an unholy mess that no-one wants to deal with. Invalidating laws, appointments, military orders -- that can't just be undone.

The whole legitimacy question may be avoided by hanging the impeachment on a post-election aspect pf the pre-election fraud, which would be an aspect sure to exist anyway.
posted by Capt. Renault at 9:32 AM on May 11, 2017 [6 favorites]

Speculation, but I think in the case of impeachment whether due to actions pre or post-election, the system handles the transition in that Congress can reverse laws and the new President can fire cabinet members and staff and can countermand illegal or incorrect Executive Orders.

You didn't ask, but I would note that Presidential impeachment and removal from office requires Congress to vote for impeachment. The President doing something illegal, or many illegal things, or even committing outright treason, is effectively allowed if Congress refuses to act. When 43% of people don't vote, and the remaining voters are split evenly, public pressure is not necessarily a catalyst.
posted by cnc at 9:46 AM on May 11, 2017 [6 favorites]

The appointees serve at the pleasure of the president. A new president would have to appoint a new cabinet which could be the old cabinet plus the consent of the Senate. Any decisions made by the old cabinet during the term of the old president would stand until overruled by the new regime.
posted by SemiSalt at 11:14 AM on May 11, 2017 [1 favorite]

In terms of succession, it won't matter, because the third person in line is the Speaker of the House, and he would not be affected by the invalid election results.

In terms of a new president, again, it won't really matter, because as SemiSalt noted, the new president will have the opportunity to pick a cabinet of his or her choosing.

So the question really is about invalidating actions taken during the current administration. As Capt. Renault pointed out, that's a dangerous road to go down. And regardless, I don't think a court would go down it, because the cabinet members were all validly confirmed by the Senate. Even if Trump's appointments weren't valid, there were other things that have happened since to confirm validity.
posted by kevinbelt at 12:09 PM on May 11, 2017 [1 favorite]

A new president would have to appoint a new cabinet which could be the old cabinet plus the consent of the Senate.

This isn't quite correct. Senate-confirmable officials (up to and including the Cabinet, ambassadors, etc.) are considered to be in place until explicitly removed (whether by resignation, firing, death, impeachment, etc.). That's why Trump officially fired a huge number of them as of the instant he was inaugurated.
posted by Etrigan at 12:15 PM on May 11, 2017

A new president would have to appoint a new cabinet which could be the old cabinet plus the consent of the Senate.
I don't think this is true. Ford didn't need to re-nominate Henry Kissenger to be Secretary of State in 1974, e.g.

A cursory comparison of Nixon's cabinet to Ford's shows no changes in 1974, for whatever that's worth, and the page for Ford's notes that he "inherited Nixon's cabinet," but had replaced nearly everyone by 1975.

If indeed renomination and reapproval was required, it seems unlikely he would've needed to resort to the Halloween Massacre.
posted by uberchet at 12:18 PM on May 11, 2017 [3 favorites]

Yeah, even if Trump and Pence were to get impeached, Paul Ryan as Speaker of the House is third in the line of succession and outside of their whole Russia thing. After him, you have the President pro tempora of the Senate, who is Orrin Hatch, and after that the Secretary of State and a bunch of different cabinet positions. I've looked at the line of succession before, but it never occurred to me before that it's pretty clever to make the line of succession skip directly over to Congress after the Vice President before it goes back to presidential cabinet appointees.
posted by colfax at 12:27 PM on May 11, 2017 [1 favorite]

A flaw in the question is the idea that the election could be "invalidated". That will never happen and it doesn't matter what Trump may or may not have done regarding Russia or anything else. I don't believe there is any Federal law that permits invalidating previously certified electoral votes due to a popular vote that may have been compromised (leaving aside how one would actually determine whether or not an illegal action was the actual cause of a particular popular vote result). In other words, the election is over. Trump was sworn into office. He is the President of the USA. If he is impeached and removed from office, his decisions will not be automatically invalidated because he made those decisions as a legitimate office holder. Congress can always vote to reverse Trump decisions. The new President could reverse executive orders. But those are purposeful actions, not automatic. And of course this does not include the Supreme Court nomination and confirmation. That process is over and will not be reversed if Trump is forced out of office.
posted by Seymour Zamboni at 12:53 PM on May 11, 2017 [10 favorites]

A flaw in the question is the idea that the election could be "invalidated". That will never happen and it doesn't matter what Trump may or may not have done regarding Russia or anything else.

This is the heart of it. The US Constitution has no mechanism for considering the question of an improper election. There's no invalidation procedure, no way to call for a re-vote, no way to call an election early. The only Constitutional approach is to go through normal impeachment protocols and hope the next person in the Oval Office cleans house. One might hope that an election that was provably tampered with might result in a Constitutional amendment addressing the question of flawed elections, but nothing like that exists now. As bad as a flawed election would be, making up extra-Constitutional procedures would be worse.
posted by Pater Aletheias at 10:19 AM on May 12, 2017 [2 favorites]

These are all great, thoughtful answers; thank you! Can't wait to see it all unfold in real time.
posted by LKWorking at 12:07 PM on May 12, 2017

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