By David B. Rivkin Jr. and Lee A. Casey

24 February 2019 in the Wall Street Journal

Did law-enforcement officials plot to remove President Trump from office? Andrew McCabe, former deputy director of the Federal Bureau of Investigation, suggests they might have. In a recent interview, Mr. McCabe said that in May 2017 Deputy Attorney General Rod Rosenstein “raised the issue” of using the 25th Amendment to remove Mr. Trump from office “and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort.” According to Mr. McCabe, Mr. Rosenstein was “counting votes or possible votes.”

Exactly what happened is unclear. A statement from Mr. Rosenstein’s office called Mr. McCabe’s account “inaccurate and factually incorrect” and asserted: “There is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.” But this is a potentially serious matter, and should be fully investigated.

The 25th Amendment was ratified in 1967, primarily to provide for the appointment of a new vice president when that office becomes vacant, as it did when Lyndon B. Johnson acceded after John F. Kennedy’s 1963 assassination. It also contains a section creating a process whereby a president who is “unable to discharge the powers and duties of his office” can temporarily cede authority to the vice president, and one through which the vice president and a majority of “principal officers”—cabinet members—can sideline a president who is disabled but won’t acknowledge it.

It is that last provision that supposedly excited Mr. Rosenstein’s interest. Mr. McCabe said the idea came in a discussion of “why the president had insisted on firing the director [Mr. Comey] and whether or not he was thinking about the Russia investigation.” To prevent interference with that probe, Mr. McCabe said, he opened new counterintelligence and criminal investigations of the president in May 2017, both of which were shortly subsumed into the probe led by special counsel Robert Mueller, whom Mr. Rosenstein appointed. 

Almost two years later, there’s no evidence Mr. Trump colluded with the Russians. Yet even if he had, it could not justify his removal under the 25th Amendment. The amendment can be lawfully invoked only if the president, by reason of some physical or mental disorder, literally cannot do his job. The examples its framers offered were the disability of President James A. Garfield during the 80 days he lingered in feverish agony after the gunshot wound that finally killed him; the period during which President Woodrow Wilson was unable to perform his duties after suffering a stroke; and President Dwight D. Eisenhower’s similar (although shorter) disabilities after suffering a heart attack and a stroke while in office.

Neither Mr. Trump’s unorthodox political style (of which the electorate was very much aware when it chose him in 2016), the disorder and divisions within his administration, nor even any criminal offense he might have committed could justify invoking the 25th Amendment. If a president is corrupt or criminal, or even a Russian spy, the Constitution prescribes a remedy: impeachment by Congress, not his ouster by unelected officials. Messrs. Rosenstein and McCabe surely knew this, and that is what makes the conversations Mr. McCabe describes serious enough to merit the attention of law enforcement.

Under federal law, it is a crime when “two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” In Haas v. Henkel (1910), the Supreme Court construed this language to include “any conspiracy to impair, obstruct or defeat the lawful function of any department of the government” using means that are not necessarily illegal themselves but involve trickery, deceit or dishonesty. That surely includes the purposeful impairment of a duly elected president through a pretextual resort to the 25th Amendment.

This law has been vigorously enforced. Mr. Mueller—presumably with the approval of Mr. Rosenstein, who is overseeing his work—last year obtained indictments against various Russian entities and persons for defrauding the U.S. by interfering in the 2016 presidential election using dishonest means.

An investigation wouldn’t necessarily lead to a prosecution. For one thing, investigators might conclude that Messrs. McCabe and Rosenstein were merely engaged in idle chatter. In this context, conspiracy requires both an agreement to defeat lawful government functions by dishonest means and an overt act in furtherance of that end. Canvassing cabinet members about their willingness to vote for the president’s removal—if that is what happened—would likely qualify. (Mr. McCabe has said Mr. Rosenstein believed two cabinet members would support the move, although he described this as “simply Rod thinking off the top of his head” and doesn’t think Mr. Rosenstein “actually sought support or talked to those people about it.”) Planning to record conversations with the president through an FBI wire, if substantiated, would also clear the bar for conspiracy.

Another challenge is that the chief witness would be Mr. McCabe, who has a credibility problem. He was fired from the FBI after the Justice Department inspector general concluded that he “lacked candor” in statements to investigators about his role in the bureau’s probe of Hillary Clinton. Still, now that his allegations have been publicly aired, they merit a prompt and vigorous investigation by the Justice Department. It would be bad enough if a conspiracy by government officials against American democracy went undiscovered, vastly worse if such a conspiracy is revealed and goes uninvestigated and unpunished.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/investigate-mccabes-25th-amendment-tale-11551045250