Less than four months after becoming president, Donald Trump fired the director of the FBI for handling an investigation into his associates in a manner he did not like. By that point, the commander-in-chief had already attempted to get the head of federal law enforcement to pledge personal fealty to him, disparaged the CIA’s assessment that Russian intelligence had intervened in the 2016 election, and declared the federal judiciary to be a national security threat.
All of which left the FBI feeling a little freaked out. In an (as yet unaired) interview with Scott Pelley of 60 Minutes, the bureau’s former deputy director Andrew McCabe reveals that top Justice Department officials seriously considered trying to remove Trump from office. Specifically, McCabe says that they discussed lobbying members of the Trump administration to invoke the 25th Amendment, a constitutional provision that allows cabinet officials to initiate a procedure for removing presidents for office on grounds of incapacity (as opposed to the “high crimes and misdemeanors” standard officially required for impeachment).
“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,” Pelley said on CBS This Morning Thursday, summarizing what McCabe had told him. “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.”
In the course of said meetings, McCabe claims that Deputy Attorney General Rod Rosenstein earnestly floated the idea of wearing a wire during conversations with Trump, so as to buttress the case for the president’s unfitness for office. This is consistent with a New York Times report from September of last year, but contradicts Rosenstein’s claim that he was joking when he offered to secretly record his conversations with the president.
McCabe’s story is buttressed by his own official memos from May 2017. As the Times reports:
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.
Some political observers — on both the left and right — have found McCabe’s disclosure alarming. In their view, federal law enforcement attempting to oust a (sort of) democratically elected head of state sounds uncomfortably like a coup d’état.
But such fears are unfounded. McCabe’s aborted plot to oust Trump from office was always too delusional to be a threat to democracy.
The fundamental flaw in McCabe’s plan — and the reason why the 25th Amendment is not actually the “break in case of coup” loophole in our Constitution that some fear it to be — is simple: A majority of the Cabinet can unilaterally declare a president incapable of executing his duties, and immediately remove him from office — but only if said president accepts their judgement.
If the commander-in-chief thinks he is actually doing an amazing job, and refuses to step down, then said Cabinet officials would need the overwhelming support of both chambers of Congress to permanently oust the president. In more precise terms, a Cabinet vote, by itself, is sufficient to strip a president of his (or her) powers for four days. But if two-thirds of the House and Senate do not approve the Cabinet’s assessment during that four-day period, then the president promptly reassumes his powers.
As Michigan State law professor Brian Kalt wrote for New York in 2017, the 25th Amendment is really designed for removing a president who is incapable of upholding his duties on a very literal level — i.e., one who is in a coma or severely demented. It is more or less useless as a means of removing a president whose unfitness for office is rooted in authoritarian instincts or personality defects. Which is to say: If the president is capable of putting up a fight, then impeachment is actually a quicker and easier means of removing him (or her) from office than the 25th Amendment.
To be sure, there’s still something a little unnerving about the FBI leadership holding meetings where unelected law-enforcement agents brainstorm how they can evict the president from the White House. For progressives — whose policy goals are not always perfectly aligned with the preferences of cops or national security bureaucracies — the specter of deep-state sabotage might be especially concerning.
But the 25th Amendment establishes a threshold for removing democratically elected leaders that is exceptionally high. Removing a duly-elected prime minister in a parliamentary democracy is much easier than removing a president through the mechanism that McCabe once contemplated. If a majority of a president’s own Cabinet — and two-thirds of both chambers of Congress — all vote to replace the president with his chosen successor, that’s not a coup; it’s a resounding vote of no confidence. More importantly, in the universe we live in, it is also a delusional fantasy.
Anyhow, there are more pragmatic ways of mitigating the dangers inherent to having a senescent narcissist occupying our nation’s most powerful office — like, say, revoking his authority to unilaterally initiate nuclear war.
