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CAN THE 25TH AMENDMENT BE USED TO REMOVE PRESIDENT TRUMP?

This article was written by the distinguished retired judge, John H. Wilson

Like any author seeking to generate interest in his new book, former acting FBI Director Andrew McCabe is making the rounds of talk shows.  Famously fired from the FBI for a “lack of candor,” Mr. McCabe has claimed in a recent interview with 60 Minutes that Deputy Attorney General Rod Rosenstein was “recruiting Cabinet members to invoke the 25th Amendment to remove President Donald Trump from office.”

Deputy AG Rosenstein has repeatedly denied these allegations.  However, as far back as last September, it was alleged that Mr. Rosenstein offered to “wear a wire” and record his conversations with President Trump while at the same time, recruiting Cabinet Members to support a move to have the President declared unfit for office.    In his most recent comments to 60 Minutes, Mr. McCabe states that Mr. Rosenstein had the support of both the then-Attorney General and the then-Director of Homeland Security. 

These allegations have been described as an attempt at a “coup d’etat,” most notably by renowned attorney Alan Dershowitz.  But before we get too excited about this evidence for the existence of a “deep state,” it would be beneficial to examine the language of the 25th Amendment to the United States Constitution.

The idea of presidential succession in the event of the incapacity of the President is actually a relatively recent development in American history.  Under Article II, Section 1, clause 6 of the US Constitution, “in case of removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President.”  In 1967, after the assassination of John F. Kennedy, there arose a concern that the Constitution did not provide for any method to be followed in the event that the President was deemed to be incapacitated.  The 25th Amendment was ratified to answer this concern.

Under Article 1 of the Amendment, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”  Section 2 gives the President the authority to nominate a Vice President, subject to a majority vote of both houses of the Congress.  Section 3 allows the President to notify both the President Pro Temp of the Senate and the Speaker of the House that he is “unable to discharge the powers and duties of his office,” and provides for the Vice President to serve as an “Acting President” Your doctor will be able to advise you order cheap cialis out of your problem once and for all. We all know that sales cialis one aspect impact of medications is sleeplessness. Drugs used for the treatment cost of viagra pills include: Benzodiazepine-based sedatives Non-benzodiazepine medications like eszopiclone (Lunesta), zaleplon (Sonata), and zolpidem (Ambien) Melatonin supplements if it is caused by different factors that include heart disease, obesity, etc. Slipping might be the result of go now cialis prescription over oiling. until such time as the President is recovered. https://www.law.cornell.edu/constitution/amendmentxxv

Section 3 of the 25th Amendment was invoked “on July 13, 1985, when President Ronald Reagan sent a letter directing then-Vice President George H.W. Bush to perform his duties while the president underwent a surgery to remove cancerous polyps from his colon. Bush was acting president from 11:28 a.m. when Reagan was given general anesthesia to 7:22 p.m. when Reagan sent another letter to members of the Senate and resumed his powers.”

Section 4 of the 25th Amendment is the one Mr. Rosenstein is alleged to have sought to invoke.  It reads “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.”  

There then follows a complicated series of steps and countermoves to be taken after the Vice President and a majority of the Cabinet stage their coup.  The President is entitled to contradict the assertion that he is unfit for office, but the Vice President and his accomplices may repeat their position that the President is unable to discharge his duties, at which point, Congress must decide the issue by a two-thirds vote of both houses.

Despite the serious nature of Mr. McCabe’s allegations, there is one crucial factor missing from the “Rosenstein plot” – the participation of Vice President Mike Pence.  At all pertinent points, Section 4 of the 25th Amendment states that “the Vice President AND a majority” of the Cabinet may act.  In a recent interview with the Vice President, not only does he deny any talks about the 25th Amendment with anyone, he asked the interviewer “why would we be?”

Thus, even if we are to believe that the Deputy Director of the FBI had discussed invoking the 25th Amendment with two Cabinet members, both of whom agreed with the idea, unless Mr. Rosenstein had the support of Vice President Mike Pence, this nascent coup d’etat was nothing more than a stillbirth, living only in the imagination of President Trump’s enemies and detractors.

Photo: Andrew McCabe (FBI official photo)

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Inspector General Report on McCabe

Our parent organization, the American Analysis of News and Media, Inc., was formed to provide timely and thorough news analysis to the public. Far too often, news organizations “filter” information through their own ideological lens.  On occasion, to accomplish this goal, we provide, without editorial comment, key reports issued by government agencies. We do so again today. Andrew McCabe was the former Deputy Director of the FBI.  He was fired for misconduct by Attorney General  Jeff Sessions. 

The U.S. Department of Justice’s Office of the Inspector General has released its report of the investigation of the allegations against concerning former FBI Deputy Director Andrew McCabe.

This the official summary of the findings:

This misconduct report addresses the accuracy of statements made by thenFederal Bureau of Investigation (FBI) Deputy Director Andrew McCabe to the FBI’s Inspection Division (INSD) and the Department of Justice (Department or DOJ) Office of the Inspector General (OIG) concerning the disclosure of certain law enforcement sensitive information to reporter Devlin Barrett that was published online in the Wall Street Journal (WSJ) on October 30, 2016, in an article entitled “FBI in Internal Feud Over Hillary Clinton Probe.” A print version of the article was published in the WSJ on Monday, October 31, 2016, in an article entitled “FBI, Justice Feud in Clinton Probe.”

This investigation was initially opened by INSD to determine whether the information published by the WSJ in the October 30 article was an unauthorized leak and, if so, who was the source of the leak. On August 31, 2017, the OIG opened an investigation of McCabe following INSD’s referral of its matter to the OIG after INSD became concerned that McCabe may have lacked candor when questioned by INSD agents about his role in the disclosure to the WSJ. Shortly before that INSD referral, as part of its ongoing Review of Allegations Regarding Various Actions by the Department and the FBI in Advance of the 2016 Election, the OIG identified FBI text messages by McCabe’s then-Special Counsel (“Special Counsel”) that reflected that she and the then-Assistant Director for Public Affairs (“AD/OPA”) had been in contact with Barrett on October 27 and 28, 2016, and the OIG began to review the involvement of McCabe, Special Counsel, and AD/OPA in the disclosure of information to the WSJ in connection with the October 30 article.

In addition to addressing whether McCabe lacked candor, the OIG’s misconduct investigation addressed whether any FBI or Department of Justice policies were violated in disclosing non-public FBI information to the WSJ.

The OIG’s misconduct investigation included reviewing all of the INSD investigative materials as well as numerous additional documents, e-mails, text messages, and OIG interview transcripts. The OIG interviewed numerous witnesses, including McCabe, Special Counsel, former FBI Director James Comey, and others.

As detailed below, we found that in late October 2016, McCabe authorized Special Counsel and AD/OPA to discuss with Barrett issues related to the FBI’s Clinton Foundation investigation (CF Investigation). In particular, McCabe authorized Special Counsel and AD/OPA to disclose to Barrett the contents of a telephone call that had occurred on August 12, 2016, between McCabe and the then-Principal Associate Deputy Attorney General (“PADAG”). Among the purposes of the disclosure was to rebut a narrative that had been developing following a story in the WSJ on October 23, 2016, that questioned McCabe’s impartiality in overseeing FBI investigations involving former Secretary of State Hillary Clinton, and claimed that McCabe had ordered the termination of the CF Investigation due to Department of Justice pressure. The disclosure to the WSJ effectively confirmed the existence of the CF Investigation, which then-FBI Director Comey had previously refused to do. The account of the August 12 McCabe-PADAG call, and other information regarding the handling of the CF Investigation, was included in the October 30 WSJ article.
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We found that, in a conversation with then-Director Comey shortly after the WSJ article was published, McCabe lacked candor when he told Comey, or made statements that led Comey to believe, that McCabe had not authorized the disclosure and did not know who did. This conduct violated FBI Offense Code 2.5 (Lack of Candor – No Oath).

We also found that on May 9, 2017, when questioned under oath by FBI agents from INSD, McCabe lacked candor when he told the agents that he had not authorized the disclosure to the WSJ and did not know who did. This conduct violated FBI Offense Code 2.6 (Lack of Candor – Under Oath).

We further found that on July 28, 2017, when questioned under oath by the OIG in a recorded interview, McCabe lacked candor when he stated: (a) that he was not aware of Special Counsel having been authorized to speak to reporters around October 30 and (b) that, because he was not in Washington, D.C., on October 27 and 28, 2016, he was unable to say where Special Counsel was or what she was doing at that time. This conduct violated FBI Offense Code 2.6 (Lack of Candor – Under Oath).

We additionally found that on November 29, 2017, when questioned under oath by the OIG in a recorded interview during which he contradicted his prior statements by acknowledging that he had authorized the disclosure to the WSJ, McCabe lacked candor when he: (a) stated that he told Comey on October 31, 2016, that he had authorized the disclosure to the WSJ; (b) denied telling INSD agents on May 9 that he had not authorized the disclosure to the WSJ about the PADAG call; and (c) asserted that INSD’s questioning of him on May 9 about the October 30 WSJ article occurred at the end of an unrelated meeting when one of the INSD agents pulled him aside and asked him one or two questions about the article. This conduct violated FBI Offense Code 2.6 (Lack of Candor – Under Oath).

Lastly, we determined that as Deputy Director, McCabe was authorized to disclose the existence of the CF Investigation publicly if such a disclosure fell within the “public interest” exception in applicable FBI and DOJ policies generally prohibiting such a disclosure of an ongoing investigation. However, we concluded that McCabe’s decision to confirm the existence of the CF Investigation through an anonymously sourced quote, recounting the content of a phone call with a senior Department official in a manner designed to advance his personal interests at the expense of Department leadership, was clearly not within the public interest exception. We therefore concluded that McCabe’s disclosure of the existence of an ongoing investigation in this manner violated the FBI’s and the Department’s media policy and constituted misconduct.

The OIG is issuing this report to the FBI for such action as it deems appropriate.

Photo credit: FBI