Legal experts are scratching their heads about House Speaker Nancy Pelosi’s push to prevent President Trump from having the nuclear codes, saying it would curtail the chain of command.
In a letter to her Democratic colleagues on Thursday, the California Democrat said she spoke to the Chairman of the Joint Chiefs of Staff Mark Milley about keeping an “unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike.”
“The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy,” Ms. Pelosi wrote.
But lawyers noted that unless Mr. Trump was incapacitated under the 25th Amendment or removed from office through impeachment, it would be legally problematic for the commander-in-chief not to be in control of the nuclear codes.
Military officers could not bar Mr. Trump from exercising his Article II authority, according to Jonathan Turley, a law professor at George Washington University.
“I know of no authority by which the nuclear codes can be withheld from the President absent a declaration under Section 4 of the 25th Amendment. Absent such a declaration, a denial of such access would be grounds for the removal of any military officer. The same is true for the exercise of other executive privileges and powers,” Mr. Turley said.
Similarly, Ilya Shapiro, the publisher of the Cato Institute’s Supreme Court Review, found Ms. Pelosi’s statement to present legal trouble unless she does pursue impeachment, which she has hinted could come next week.
“It’s definitely a problem. Until and unless the president is removed, either through the 25th Amendment or impeachment, he remains the commander-in-chief. Given Pelosi’s statement, either she’s proceeding with impeachment or she’s setting a dangerous precedent for disrupting the civilian chain of command,” Mr. Shapiro said.
Democrats have been pushing for Mr. Trump to be impeached a second time, arguing that he incited his supporters to break into the Capitol in a violent riot that ended with multiple people dead. They argue the president should never be able to serve in office again, and an impeachment would be a path to ensuring that bar is set.
If a president is impeached in the House and convicted by the Senate, the upper chamber then holds a second vote to bar the individual from serving in higher office again. It would require 67 senators to accomplish their goal.
Ms. Pelosi also said in her letter that she asked Vice President Mike Pence to invoke the 25th Amendment to remove Mr. Trump, who she said is unstable to continue to serve.
She warned if Mr. Pence does not take action, they could move forward in Congress to hold Mr. Trump responsible for the actions of his supporters following a speech he delivered from the White House on Wednesday — just prior to the violence breaking out on Capitol Hill.
“If the President does not leave office imminently and willingly, the Congress will proceed with our action,” Ms. Pelosi wrote.
Mr. Trump has been telling his voters the 2020 election was stolen due to alleged fraud. Election officials from several swing states have dismissed the claims.
Ms. Pelosi’s chamber impeached Mr. Trump over a call with the Ukrainian president in late 2018, and the Senate held a trial early last year. The Republican controlled chamber did not vote to remove him at that time.
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