Media Missing The Point In McCabe's 25th Amendment Story

[ Posted Thursday, February 21st, 2019 – 17:32 UTC ]

The mainstream media -- right, left, and center -- are largely missing the point when reporting (and opining) on the recent revelation about Andrew McCabe and Rod Rosenstein talking about the use of the Twenty-Fifth Amendment. Because in all the shocking hair-on-fire reaction, few bother to point out that neither man would have had anything to do with removing President Trump with the procedures laid out in the Twenty-Fifth Amendment. The president's cabinet would be initially involved, and then Congress might also have a direct say, but "secondary officials at the Justice Department or the Federal Bureau of Investigation" are simply not on that list.

McCabe is, of course, currently out there on a book tour, hawking his tell-all of life as he saw it within the Trump administration. But the focus on the Twenty-Fifth Amendment story is kind of odd, because it was not actually news. It had been previously reported months ago, in fact (in September of last year), from Rosenstein's point of view. The only news was the additional point of view of McCabe, who was the person Rosenstein was speaking to about the Twenty-Fifth Amendment.

McCabe's book brought this story back up again, and the media started reporting on it as if it were some sort of scoop, even though the news wasn't exactly fresh or anything. But this time around, the story seems to have made a bigger splash.

Left-leaning media have been breathlessly reporting on the possibility that Trump could have been removed from office. Right-leaning media are using scary labels for the entire process, including "administrative coup" and/or "bureaucratic coup." The more unhinged of these even try to call the action "unconstitutional."

The left is wrong to treat the story so seriously, because it really wasn't all that big a deal. The right is wrong to try to impart sinister motives, even though their labels are actually (for once) mostly correct. Except for the bit about being unconstitutional, since (obviously) the Twenty-Fifth Amendment is part of the U.S. Constitution itself. It'd be like trying to make the case that free speech was unconstitutional, or refusing to testify by using your Fifth Amendment rights was unconstitutional. By definition, parts of the Constitution cannot be called (by any rational individual) "unconstitutional."

But the labels "administrative coup" and "bureaucratic coup" are actually pretty accurate. I prefer the term "constitutional coup" myself, but they really all are saying the same thing.

I first wrote about the Twenty-Fifth Amendment over ten years ago, in relation to a similar thing that was being attempted in the state of Illinois (to get rid of then-Governor Rod "Blaggy" Blagojevich). I used the term "constitutional coup" in the title of the article, and just before quoting the text of the amendment itself, wrote:

But we're getting lost in the wrong section of the amendment. Because the next section clearly lays out the legal process for a coup of the President of the United States. It doesn't use the word "coup," but the end result would be the same.

I went on to note that the bar for removing a president via Section 4 of the Twenty-Fifth Amendment actually set the bar higher than for impeachment, and concluded that therefore if any president were ever to be forced out of office, it'd likely be by impeachment and not the Twenty-Fifth.

I revisited the Twenty-Fifth Amendment on Donald Trump's sixth day in office. It seemed like a dandy time to dust off the amendment and dig into how it would actually happen, for some reason.

I began by examining the text of the relevant section:

"The principal officers of the executive departments" means the president's cabinet. So if Mike Pence decides that Donald Trump is mentally unfit for office and if he can get over half the cabinet to back him up, he can wrest the presidency away from Trump. This is what has caused all the recent speculation, and it's my guess that this section of this particular amendment is going to become more and more well-known as the Trump presidency proceeds. Calls to "take the 25th" may become common if Trump does something incredibly outrageous, in other words.

This has, to some degree or another, come true. I'd be willing to bet good money that there have been more news articles written on the subject during Trump's time in office than during any president's tenure since at least Ronald Reagan or perhaps Richard Nixon (Nixon for obvious reasons, and Reagan because at the end of his term his mental acuity was openly being questioned).

I continue, in this article, to perform a deep dive into exactly how the process would unfold. This is important to understand, because most news stories never contemplate the process at all. It is presented as a simple process of the Vice President and a majority of the cabinet signing a letter and sending it to Congress. The implication is always "and then Mike Pence becomes president," but that's not actually the case (unless Trump chose to accept their evaluation of his fitness to serve, which seems unlikely). If Trump objected, then Congress would decide, and by a two-thirds majority in both houses (unlike impeachment, which requires a two-thirds vote in the Senate but only a simple majority of the House). Even if successful, the Twenty-Fifth Amendment still leaves a loophole, because Mike Pence would then only officially become "Acting President," which (though unsaid) might mean Trump could continue to still be "President Trump," just without any power or duties. Which is why I ended with the same conclusion I had come to before: that impeachment was a far easier and cleaner option to use, should it become necessary to force Trump out.

Now, you can argue that Trump himself probably wouldn't refuse to leave, but who knows what he'd do in such a situation? It would be a completely unprecedented constitutional crisis, so there simply are no previous rules to follow. We'd all be making it up as we went along, Trump included. But whatever the end result, the process itself is a lot more complicated than some (even some professional journalists) seem aware of, at this point. It's not just signing one letter. Trump would fight back. For up to three weeks, we'd effectively have two leaders for our government, which would be precisely as chaotic as it sounds. And even if the effort were successful, we might still have President Trump kicking around the White House afterwards. When you think it all the way through, impeachment would likely be the better route to take. If Donald Trump did something so outrageous that he lost support of roughly half the Republicans in Congress, then the case for impeachment would likely be just as easy to make as taking the Twenty-Fifth. At least with impeachment, once it was over, Trump would be gone.

But it still could happen -- the one thing the Twenty-Fifth has going for it that impeachment doesn't is how fast it would happen. It could be over within a few weeks, whereas an impeachment and Senate trial would likely take months, even in the best-case scenario. And it's entirely plausible that time could be a major factor in getting Trump out of office.

But putting aside the question of how likely it is to happen, the conservative commentators are entirely correct that this would be a constitutional (or "administrative" or "bureaucratic") coup d'état. But we've decided that such a mechanism is necessary, which is why the Twenty-Fifth Amendment was ratified during the Cold War. There's one very good historic example of why it might be necessary, which I explained the last time I wrote about the Twenty-Fifth Amendment:

Ninety-nine years ago this month, the president of the United States suffered a stroke. In September of 1919, President Woodrow Wilson became incapacitated. He was neither physically nor mentally able to perform his constitutional duties.

Others at first hid the president's condition from the public. His wife and his cabinet maintained the pretense that Wilson was still in charge and still doing his job. He wasn't. In fact, his wife was more in charge of the United States government than anyone else, as she dealt with routine matters and handed off more serious matters to the cabinet members to deal with. She even brought in a complicit journalist who wrote a "fake news" story (in the original meaning of the term) to convince the public that all was well, when in reality all was decidedly not well with the president.

Now, Wilson had done nothing that could be considered impeachable, so even if the press corps and Wilson's cabinet hadn't gone along with the charade, there was really nothing that could be done about the situation. The Twenty-Fifth Amendment was still a half-century in the future. But it might have come in handy at least at this one point in American history, had it existed at the time.

Which is why the framework for such a coup was added. It really was intended to deal with a president who was somehow medically incapacitated, and has been used in very limited form (under other sections of the amendment's text) when presidents have had surgery performed on them. A letter is signed giving the vice president temporary presidential power, and then when the crisis is over the power is returned to the president. Although it has never been used to depose a president, the framework for doing so remains part of our Constitution. Which is why I've always called it a constitutional coup.

But to return to my initial point, all of this does not matter one whit in the story about Rosenstein bringing up the Twenty-Fifth Amendment to McCabe. Because neither one of them is in the cabinet. Neither man would have had a vote, plain and simple. So it really doesn't matter how much they discussed it, or even what they said about the Twenty-Fifth Amendment. They are free -- as is every citizen -- to speak and speculate about the Twenty-Fifth Amendment to their heart's content. Because no matter what they concluded about it, they had no power to even initiate the process. Not only did they not have a vote, they could never have started the process moving at all, other than perhaps raising the issue with Attorney General Jeff Sessions. Sessions obviously would never have acted upon their suggestion, so even if they had done everything in their power to suggest it to him, it would have gone precisely nowhere.

This basic fact seems to be missing from almost all the breathless reporting. Somehow the media is trying to imply that had Rosenstein and McCabe agreed that the Twenty-Fifth was somehow justified then Trump might have been forced out of office. This is simply not true. It's not even remotely true. Even if Jeff Sessions had decided to act (which I find totally and utterly inconceivable, personally), he would have had to convince Mike Pence and half the cabinet to go along with him. That is simply not plausible to even seriously contemplate, especially considering that the time period under discussion was during the very first few months of the Trump administration.

In the end, it really doesn't matter what these two men said about the Twenty-Fifth Amendment, because it was nothing more than the sheerest speculation on their part or, perhaps, some wishful thinking. Which really should be mentioned in every story in the news, but somehow is not.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


10 Comments on “Media Missing The Point In McCabe's 25th Amendment Story”

  1. [1] 
    nypoet22 wrote:

    thank you for clearing that up. so basically it's a three week coup... and unless two thirds of both houses of congress back the VP, the president takes over again when the three weeks are up?

  2. [2] 
    Kick wrote:

    The right-wing MSM is also referring to McCabe's opening of a counterintelligence investigation of the president as a "deep-state coup," which is equally ridiculous since McCabe met with the "Gang of 8" to inform them the FBI had opened a counterintelligence investigation into Trump after the firing of former FBI director James Comey, and not a single one of them had any objection based on his presentation of the facts known at that time.

    Devin Nunes then ran straight to the White House/Trump to inform regarding everything, we've watched it play out in real time ever since, and that is why I referred to Devin Nunes as an "ignorant tool."

    And now that Nunes has been Trump's "ignorant tool" for multiple years, he could certainly tell us what it's like to work for a madman; however, I would wager Mikey Cohen will beat him to it. :)

  3. [3] 
    Balthasar wrote:

    No, no, what you're ALL missing is that this conversation was part of a larger conversation going on, to wit:

    What if the President is a tool of Russia?

    And they began brainstorming ways to get him out of office. Of course the 25th came up. I'm sure a bunch of things were considered and abandoned. But then serendipity landed in their laps: Sessions had to recuse. Rosenstein named a Special Counsel, and the rest is recent history.

    But Trump is still trying to shut it down. So certain were they that within hours of Barr getting into office they were leaking that Mueller was done.

    Meuller isn't done. Wonder what Barr will do?

  4. [4] 
    Chris Weigant wrote:

    nypoet22 [1] -

    Yep, pretty much. Unless Trump voluntarily decides to go along with it and not fight it, but that's a pretty remote possibility...

    Balthasar [3] -

    That's probably pretty close to what happened.


  5. [5] 
    Kick wrote:


    No, no, what you're ALL missing is that this conversation was part of a larger conversation going on, to wit:

    What if the President is a tool of Russia?

    Bingo! Yes, sir... absolutely more than one "ignorant tool," and that was the thrust of McCabe's presentation to the Gang of 8 which, at that time, included Devin Nunes... ignorant tool of the suspected ignorant tool.

    The investigation into obstruction regarding Trump was never really on a separate track, as it was obvious based on the facts known at the time (many of them public), that obstruction had occurred.

    Having said that, whether or not obstruction will be charged based on the known facts is an entirely different conversation, and that applies to all the "ignorant tools" who violate the law; some are pursued via prosecution, some are dealt with via other methods, etc... think Jason Chaffetz (among others), but I digress.

    And they began brainstorming ways to get him out of office. Of course the 25th came up. I'm sure a bunch of things were considered and abandoned. But then serendipity landed in their laps: Sessions had to recuse.

    Sessions had already recused on March 2; the FBI was well aware long before that time that if Sessions was confirmed as AG that he would have to recuse himself regarding the Russia investigation because facts and lying... which history has shown lying under oath or to Congress and/or agents of the DOJ is a universal occurrence of almost every single one of the MAGAts, but again I digress.

    Comey was fired 2 months later on May 9, and the meeting with the two Sergey's in the Oval where Trump stated, "I just fired the head of the FBI. He was crazy, a real nut job," occurred one day after Comey's firing. "I faced great pressure because of Russia. That's taken off." <---- Ignorant Tool.

    Rosenstein named a Special Counsel, and the rest is recent history.

    A nice brainstorming session with a right proper outcome.

    But Trump is still trying to shut it down. So certain were they that within hours of Barr getting into office they were leaking that Mueller was done.
    Meuller isn't done.

    When All In The Family aired its last show in 1979, Archie Bunker’s Place and other spinoffs continued to air. :)

    Wonder what Barr will do?

    So does Trump. Poor Donald was unaware that Mueller and Barr were such good friends. It almost seems like Trump was led down the garden path. *laughs*

  6. [6] 
    Kick wrote:


    Congratulations goes out to Don Harris for finally figuring out after all these years that his "One Demand" is absolutely and unequivocally "such a non-issue."

    Cheers on your breakthrough, Don; you are living proof that some of us are slow learners but eventually do come around... ever so slowly. :)

  7. [7] 
    Kick wrote:

    Don Harris

    Just another example of Kick seeing what Kick wants to see.

    If you genuinely believe your BS is a "real issue" yet continue unabated with that repetitive "beg and blame" routine you've worn out on this forum, then I'd say it's patently obvious who is seeing what they want to see. :)

  8. [8] 
    nypoet22 wrote:

    If McCabe and Rosenstein saw fit to discuss the 25th, so can we. However as we all know, the real issue afoot is to defeat Donald Trump by voting based on pie.

  9. [9] 
    TheStig wrote:

    I see the 25th Amendment as just a second Trigger on the Impeachment Blunderbuss. It makes some practical sense. Cabinet members and the VP may get to see things at work, or around a hospital bed, that the House O' Reps doesn't down at The Captital.

    The triggers fire the same projectile, but the size of the impeachment bullseye is bigger when the house pulls the trigger.

  10. [10] 
    Kick wrote:

    It looks like Robert Kraft has got himself yet another Big Ring to make up for the one Putin took from him.

    And just a hop, skip, and a jump from Mar-a-Lago... you don't say. #ProstitutionRing

    If you're thinking that it's no coincidence that all this Jeffrey Epstein and human trafficking/pedophilia stuff is coming out now, then you've been paying attention.

    Lock them up, lock them up, lock them up!
    Regardless of Party and Party be damned.

    It's all downhill from here; buckle up.

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