McCabe Claims DOJ Discussed Ousting Trump

The former #2 official at the FBI is trying to sell a book.

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.

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FILED UNDER: Law and the Courts, Twenty-Fifth Amendment, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mark Ivey says:

    Trump is boosting McCabe’s book sales today. You betcha..

    1
  2. gVOR08 says:

    The former #2 official at the FBI is trying to sell a book.

    I think you’re subhead nails it.

    People talk about lots of things. We seem inundated with appeals for us to understand our Tea Party, Evangelical, Trumpskyite brethren. Could they, maybe, just maybe, expend some effort to understand why people who actually pay attention to these things loathe Trump?

    5
  3. Tyrell says:

    “Seven Days in May”?

    4
  4. James Joyner says:

    @gVOR08: Oh I think that’s well understood in elite and professional circles. I think there are solid grounds for both impeachment and invocation of the 25th. I just don’t think senior DOJ officials should initiate things.

    6
  5. Mikey says:

    @James Joyner: In normal times, with a normal President, you’d be exactly right.

    Unfortunately, we now have neither, and FBI agents take an oath to support and defend the Constitution. View McCabe’s statements in that context and things look very different indeed.

    2
  6. gVOR08 says:

    @James Joyner: I should perhaps have been clearer. My point is not that of course people had reason to blue sky about what to do in an unprecedented and threatening situation. As with Strzok and Page’s texts, I just think it would be helpful if Republicans, professionals and voters, didn’t immediately take McCabe’s second hand account of other people’s statements as evidence of a deep state plot. It would be helpful if people who constantly demand that I understand them (I do, I even like a lot of them) made some slight effort to understand why some of us might have concerns about Trump. Educated urban professionals don’t like Trump. This is a fact of life. That they talk about not liking Trump is not evidence of a plot.

    5
  7. Jay L Gischer says:

    Comey’s firing was a very serious threat to the FBI and the DOJ. Of course they took it seriously and responded seriously.

    I think that sub-cabinet civil servants often try to recruit cabinet members to do a variety of things. It isn’t a coup unless they demand to take over the government. But what they demand is a President who won’t fire the FBI Director because he refuses to pledge his loyalty to anything but the Constitution.

    You could even frame this book that way, that McCabe wants to get his own feelings and point of view on the matter out there. It’s a little tricky to do that and not make money.

    1
  8. Michael Reynolds says:

    When voters fail to do their jobs the system comes under strain. The fact that ~42% of Americans continue to refuse to acknowledge reality increases that strain. The essential failure here is that of 46% of the American electorate to navigate the world’s easiest human resources department choice: A) Unlikeable but competent woman, B) Orangutan.

    Durrr, I want the orangutan becuz libruls will be pissed. Heh. Heh heh. Heh. I am Cornholio!

    The FBI was faced with the fact that Trump was a criminal, the head of an active crime family, and had betrayed this country to Vladimir Putin. They were faced with what amounted to a Pearl Harbor attack by the Russians on the United States, to which the POTUS was party, and to which he refused to respond or even allow us to defend against in the future. Donald Trump is an enemy asset. Donald Trump is a traitor. He is an active enemy of the United States.

    In light of that appalling reality, desperate patriots did what they could to alert people they naively believed might care more about their country than their own power.

    McCabe is a hero.

    14
  9. Kathy says:

    I’m sur I’ve mentioned before that when one high-profile person gets away with breaking norms, then other norms will be broken by other people. We’re seeing this principle in action, and that should worry Dennison and his band of deplorables.

    2
  10. Gustopher says:

    @Michael Reynolds: The 25th Amendment is for removal on medical grounds, not judicial grounds. Barring an actual medical condition (inflamed asshole is not one), any effort along those lines would create a constitutional crisis. And, without the consensus that impeachment and conviction requires, it would tear this country apart.

    If McCabe has classified information that suggests our country is at existential risk, he should be a patriot and come forward and expose it all. Yes, that would put him in an uncomfortable position.

    So far, we haven’t seen anything that makes it worth risking our country. And, yes, that would be the consequence — 40% of America still wants this guy.

    All McCabe does by speaking out about this is undermine the support of the proper processes by making it look like a witch hunt.

    His book could have waited.

    6
  11. Just nutha ignint cracker says:

    @Michael Reynolds: In Cowlitz County, Washington, there is a Cornhole League. Before anyone gets too excited, apparently, “cornhole” is what the game “bean bag” is called when the little sacks that one throws at a target are not filled with beans.

    I was a little startled when a teacher came to a school I was subbing at one day wearing a t-shirt declaring that he was “Cornhole Champion.” Before then, I’d never known cornhole except in the context you were using it.

  12. Guarneri says:

    Truly deranged people wildly pontificating complete with deranged accusations.

    5 stars for entertainment.

    3
  13. Eric Florack says:

    @James Joyner: on what basis? The last I knew, “because I don’t like him” is not a valid reason for impeachment.

    @Michael Reynolds:

    Man, the way you’re acting, you would think Donald Trump had sold 20% of America’s uranium to the Russians, then received $140M in payment.

    Oh, wait….

    5
  14. Tyrell says:

    @Kathy: “Deplorables” is it?
    If you are referring to the people who voted for him, let me say some of my relatives, friends, and neighbors voted for him, mainly as the alternative to Hillary. Now I would say I only know about three people who are not Trump supporters.

    2
  15. Michael Reynolds says:

    @Eric Florack:
    Debunked about 20 times.

    5
  16. Michael Reynolds says:

    The constitution is not a suicide pact. In the end the point is freedom, the survival of our liberty, our rights. McCabe did his best to defend that. That is exactly what I expect of a public servant in an emergency.

    5
  17. An Interested Party says:

    Whatever one thinks of McCabe, rest assured that all of this will wash away as nothing once it is established that we have a president who colluded with a hostile foreign power to win an election…the latter is much more an act of treason than the former…

  18. Eric Florack says:

    @Michael Reynolds:

    They tried 20 times. They didn’t succeed.

    Meantime you think McCabe is a hero?
    Once you’ve convinced yourself that your job is to protect the proles from themselves, any foul action you take becomes excusable, or even noble. That’s progressivism in a nutshell.

    You do realize you’ve gone round the bend, right?

    @An Interested Party: the seven has concluded that there is no evidence of this. Mueller and his crew are indicating that a lot of people are going to be disappointed in the report if it ever shows up. we’ve seen a serious effort the last month or so trying to tamp down expectations that anything is ever going to come out of the Mueller investigation.

    But, you got desperate hope going for you, so there’s that.

    2
  19. Eric Florack says:

    @Michael Reynolds:

    They tried 20 times. They didn’t succeed.

    Meantime you think McCabe is a hero?
    Once you’ve convinced yourself that your job is to protect the proles from themselves, any foul action you take becomes excusable, or even noble. That’s progressivism in a nutshell.

    You do realize you’ve gone round the bend, right?

    @An Interested Party: the seven has concluded that there is no evidence of this. Mueller and his crew are indicating that a lot of people are going to be disappointed in the report if it ever shows up. we’ve seen a serious effort the last month or so trying to tamp down expectations that anything is ever going to come out of the Mueller investigation.

    But, you got going for you, so there’s that.

  20. Hal_10000 says:

    One piece of context missing from this discussion: the removal of a President via the 25th Amendment is only temporary. And if the President disputed it, he will resume power unless 2/3 of Congress votes against him. So even if the 25th Amendment were invoked, it would be only a temporary respite.

    Face it folks, the only way Trump leaves office is if the Democrat don’t bollox the election next year.

    1
  21. just nutha says:

    @Eric Florack: just curious, who is/are “the seven?”

  22. An Interested Party says:

    the seven has concluded that there is no evidence of this. Mueller and his crew are indicating that a lot of people are going to be disappointed in the report if it ever shows up. we’ve seen a serious effort the last month or so trying to tamp down expectations that anything is ever going to come out of the Mueller investigation.

    What right-wing fever swamp bullshit are you spouting…