McCabe, Trump and the 25th Amendment

So on Thursday, former FBI Deputy Director Andrew McCabe said that the Justice Department, at one point, considered using the 25th Amendment to remove Donald Trump from office:

.@ScottPelley on what McCabe told @60Minutes: “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.” pic.twitter.com/iVAyrEV4MF

— Norah O’Donnell?? (@NorahODonnell) February 14, 2019

Last night, in his 60 Minutes interview, he elaborated on it, claiming that Rod Rosenstein raised it in discussion:

60 Minutes Moment of the Week: Former FBI acting director McCabe says Deputy Attorney General Rod Rosenstein raised the idea of removing President Trump via the 25th Amendment. https://t.co/wkC4AKxGiC pic.twitter.com/UkOb4QbrZh

— 60 Minutes (@60Minutes) February 18, 2019

McCabe seems to have backed down a bit from the initial claims, now claiming this was simply a discussion point in a long conversation about the crisis in the Executive Branch. But this has not stopped an explosion of online commentary, both for and against the idea.

Before we get into this, let’s look at the actual text we’re talking about:

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.

So, a few things to pull out of this and clear up some misconceptions. First, invoking the 25th Amendment does not remove the President from office; it makes the Vice President “Acting President”. Second, it is not a permanent thing. If the President notifies Congress that he is able to resume his duties, the “Acting Presidency” ends unless the body that removed him disputes it. If the Vice President and the President disagree on whether he can resume his duties, Congress must vote. And if less than 2/3 agree, the President resumes his duties.

To date, Section 4 of the 25th Amendment has never been used. Section 3, in which the President voluntarily relinquishes his power, was invoked once by Reagan and twice by Bush 43 so that their Vice Presidents could assume power while they were in surgery. Section 4 was considered when Reagan was shot and during rumors of his alleged incapacity in 1987 (which the cabinet backed down from when he showed no mental incapacities during cabinet meetings).

In fact, even pop culture has shied away from it. It showed up in the series of 24 where it was used to temporarily remove David Palmer from office because he would not immediately launch a counterattack on a country supposedly responsible for a terrorist attack. It was a silly plot thread but, even in that case, was portrayed as effectively a coup because … it was.

Although the text is vague on what exactly “unable to discharge the powers and duties of his office” means it is generally understood to mean some form of incapacity, not unsuitability. The historical background drew from things like Woodrow Wilson’s stroke or Eisenhower’s heart attack and the uncertainty this created. In those cases, we had an “Acting President” in effect, but not in law. The Amendment merely codified this arrangement into the Constitution. In an interview with Vox, one of the authors of the Amendment discusses the context

Sean Illing: What does it actually say about the conditions under which a president can be removed from office?

Jay Berman: Well, that’s the big question, isn’t it? It’s much more about process than it is about setting into the Constitution a trigger mechanism. The president has to be unfit to fulfill his obligations. Everything about the 25th Amendment implies that removing an elected president is primarily a political act. Of course, it should be informed by medical opinion on both the physical and mental health of the president, but ultimately the act of removing the president is a political act.

The judgement is political, much like what constitutes “impeachable offense” is political. But as politics go, if you’re going to invoke the 25th Amendment and have unelected cabinet members remove the President from office, even temporarily, you better have a damned good reason for doing it. And you’d better be able to prove to the public that not only was this necessary, it was immediately necessary. Short of a full blown medical crisis like a heart attack, that should mean something like video of the President running through the halls of the White House naked and covered in feces. (Although if such a tape were to emerge, I’m sure the President’s defenders would simply declare it was an act of genius and the biggest pwning of the liberals ever.) Removing a president because he is corrupt or engaged in criminal activity or for any other reason is properly the role of impeachment, where a president is removed by elected representatives of the people and the states.

So, given that, would the Justice Department invoking the 25th Amendment be a “coup” as many of the more hysterical Right-Wing commentators are saying? No, not really. First of all, McCabe’s comments — even if we take them at face value — indicate they were discussing how this might happen through the cabinet, which would make it a legal process. Whatever the wisdom or folly of the idea, it would be no more a “coup” than the impeachment of Bill Clinton in 1998 was a “coup” (a few hysterical celebrities not withstanding). And, as noted above, the removal from office would be temporary unless confirmed by 2/3 of Congress, which would … never happen.

That having been said, however, I think such discussions, if they took place, were highly inappropriate and monumentally stupid. James Joyner:

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.

Indeed. Even though it wasn’t technically a “coup attempt”, it will only feed the perception among the Trump die-hards of a Deep State intent on destroying the President. McCabe’s admission was a giant bow-tied gift to the President and his supporters, feeding yet more material into the increasingly convoluted conspiracy theories involving Peter Strzok, Fusion GPS, wiretapping, Uranium One and, at this point, probably the Roswell aliens.

Now you may have noticed a few conditional clauses in this post. That’s because the gripping hand here is that I’m not sure I believe McCabe. Rod Rosenstein has rebutted a number of McCabe’s allegations already. McCabe was fired from his job for improperly disclosing information to the media and lying about it to his superiors. Because a lot of people hate Trump, his firing made him a hero but he shouldn’t be. Moreover, McCabe has a book to sell. He knows that the 25th Amendment “solution” to Trump resonates in certain corners because of the belief that Trump is temperamentally unsuited to the Presidency. And the sales of his book have almost certainly been boosted by both his claim and the President’s predictably hysterical response to it. Given all this, I think it’s highly likely he’s full of it. If I had to guess, I would say there were some casual discussions about whether the 25th Amendment might be invoked and he is inflating these offhand discussions into “eight days in May”, hoping that Brad Pitt will play him in a movie with that title.

Regardless of the veracity of McCabe’s claim, I think the 25th Amendment talk should be put to rest. Trump’s physical health appears to be fine for a man of his age. And while I agree that he is temperamentally unsuited to office in many many ways, there’s no evidence of the kind of serious mental illness or incapacity that would justify removing him this way. If he has engaged in criminal activities, the proper avenue for that is impeachment. Berman again:

Sean Illing: I’ll ask you straightforwardly: Do you think the 25th Amendment should be invoked to remove Donald Trump from office?

Jay Berman: No.

Sean Illing: Why not?

Jay Berman: At this moment, I don’t think he meets the test of a president who’s incapable of fulfilling his responsibilities. I think he was elected to do these dumb things. He hasn’t become dumber or meaner since he was elected — this is who he’s always been. This was who he was when he ran, and may well have been the reason people elected him.

The problem is that we have a ridiculous electoral system and a bizarre set of circumstances that conspired to make this situation possible. But I can’t honestly say that the 25th Amendment is the answer right now. The answer right now is impeachment.

Exactly. Impeachment is not going to happen either, of course. The only way Trump leaves before 2025 is if he gets voted out next November. His political opponents would do well to focus on that instead of pie-in-the-sky daydreams of the cabinet spiriting him out of our lives.