NYT (“McCabe Says Justice Officials Discussed Recruiting Cabinet Members to Push Trump Out of Office“):
Andrew G. McCabe, the former deputy F.B.I. director, said in an interview aired on Thursday that top Justice Department officials were so alarmed by President Trump’s decision in May 2017 to fire James B. Comey, the bureau’s director, that they discussed whether to recruit cabinet members to invoke the 25th Amendment to remove Mr. Trump from office.
The concerns about the president’s actions also prompted Mr. McCabe to order the bureau’s team investigating Russia’s election interference to expand their scope to also investigate whether Mr. Trump had obstructed justice by firing Mr. Comey. They also were to examine if he had been working on behalf of Russia against American interests.
Mr. McCabe’s remarks were made in an interview on “60 Minutes” scheduled to air on Sunday. He was promoting his memoir, “The Threat: How the F.B.I. Protects America in the Age of Terror and Trump,” which will be released next week.
Mr. McCabe said he spoke to Mr. Trump just after Mr. Comey was fired, and the next day he met with the team investigating Russia’s election interference.
[…]
As a clip from the interview with Scott Pelley was released, Mr. Pelley said on “CBS This Morning” that Mr. McCabe had confirmed a New York Times report that the deputy attorney general, Rod J. Rosenstein, had suggested wearing a wire in meetings with Mr. Trump and that Justice Department officials discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office.
“There were meetings at the Justice Department at which it was discussed whether the vice president and a majority of the cabinet could be brought together to remove the president of the United States under the 25th Amendment,” Mr. Pelley said. “These were the eight days from Comey’s firing to the point that Robert Mueller was appointed special counsel. And the highest levels of American law enforcement were trying to figure out what do with the president.”
Former law enforcement officials said the comments were made during a pair of meetings on May 16, 2017. Mr. McCabe and his former colleagues kept contemporaneous memos on their interactions with Mr. Trump and Justice Department officials.
According to one of those memos written by Mr. McCabe, an excerpt from which was provided to The New York Times, the former F.B.I. agent wrote that “we discussed the president’s capacity and the possibility he could be removed from office under the 25th Amendment” and the deputy attorney general indicated he looked into the issue and determined he would need a “majority or 8 of the 15 cabinet officials.” Mr. McCabe added that Mr. Rosenstein suggested that he might have supporters in the attorney general and secretary of Homeland Security.
Mr. Rosenstein had disputed the account about the wire and the 25th Amendment.
A former Justice Department official who was present at the time when Mr. Rosenstein proposed wearing a wire said the deputy attorney general had made the remark sarcastically. The Justice Department provided an anonymous comment from the official. But Mr. McCabe said the idea came up repeatedly and was taken seriously, Mr. Pelley said.
Granting that the circumstances of McCabe’s firing were highly unusual—I described them at the time as both “shameful” and “an abuse of power”—I’m more than a little disturbed that he is leveraging private conversations about confidential matters at the highest levels of US law enforcement to make a buck. It’s not only unseemly but makes it harder going forward for officials to speak candidly in the course of their duties. Alas, it has become a Washington tradition.
I also find the discussion more than a little problematic on the merits. The 25th Amendment was passed in response to the 1963 assassination of President John Kennedy and a sense that the old way of doing things was no longer workable in the nuclear age. Specifically, prior to the passage of the amendment in 1965, there was no provision for replacing the Vice President should that office become vacant, whether because he moved up to fill a vacancy in the Presidency or otherwise. Additionally, there was no provision for ousting a President who became incapable of carrying out his responsibilities, whether temporarily or permanently.
Several Vice Presidents had in fact moved up replace a President before 1965; thankfully, we’d never had to test what would happen if a second replacement was needed. Of course, we indeed tested it in the next decade: Vice President Spiro Agnew was forced to resign in scandal and, under the provisions of Section 2, President Richard Nixon was able to appoint then-House Minority Leader Gerald Ford as a replacement. Nine months later, Ford became President upon Nixon’s resignation and appointed Nelson Rockefeller to succeed him as Vice President. Had the 25th not been in place, the Speaker of the House, Democrat Carl Albert, would have become President upon Nixon’s resignation, pursuant to the Presidential Succession Act of 1947. But that would presumably have created a very different dynamic, indeed, vis-a-vis Nixon’s decision to resign.
Section 3 of the Amendment, which provides for the Vice President to replace a President who is temporarily incapacitated, has been utilized numerous times over the years, usually in conjunction with scheduled surgery. (It was long presumed that George H.W. Bush temporarily replaced Ronald Reagan during his surgery after John Hinkley’s botched assassination attempt but no such transfer of power actually took place.) This is a far better state of affairs than Edith Wilson’s surreptitiously running the country while her husband, Woodrow Wilson, was incapacitated.
Thus far, however, we have not tested the provision relevant here:
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
This process has been pointed to much more frequently during the Trump administration than at any time in my memory—which goes back decades—because of the President’s seemingly erratic behavior. Still, while the procedure is thus far untested and theoretical, it strikes me as wildly inappropriate for career officials of the US Government to have secret meetings where they discuss ousting their Constitutional boss. That’s doubly true when it’s the nation’s top law enforcement agency reacting to the firing of their director.
While there’s nothing in the text of Section 4 that precludes the Justice Department from issuing advice to the “principal officers of the executive departments” vis-a-vis the legalities of the 25th Amendment, surely it should come in response to said officers’ request. The plain language of the Amendment—which is to say, the plain language of the Constitution to which McCabe and other FBI officials took an oath to uphold—contemplates the Vice President AND a majority of cabinet secretaries deciding that the President is incapable of doing his job and then going to Congress for its judgment. That’s an inherently political process but one plainly envisioned to be initiated only under the direst of circumstances by the people closest to the President and presumed to be the most loyal to him.
To be sure, McCabe and company had no authority to initiate the provisions of Section 4 on their own. All they could do is recommend. But having career law enforcement officials seeking to “recruit cabinet members to invoke the 25th Amendment to remove Mr. Trump from office” is too coup-adjacent for my liking. It is decidedly not within the purview of civil servants.
