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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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Mueller’s Conflict of Interest, Part 2

During Mueller’s leadership at the FBI, reports The Wall Street Journal’s Devlin Barrett, the political organization of Virginia Governor Terry McAuliffe, “an influential Democrat with longstanding ties to Bill and Hillary Clinton, gave nearly $500,000 to the election campaign of the wife of an official at the Federal Bureau of Investigation who later helped oversee the investigation into Mrs. Clinton’s email use…The Virginia Democratic Party, over which Mr. McAuliffe exerts considerable control, donated an additional $207,788 worth of support to Dr. McCabe’s campaign in the form of mailers, according to the records. That adds up to slightly more than $675,000…”

The information that has been ascertained provides a disturbing picture of the Clinton campaign utilizing highly partisan research of very dubious veracity from individuals colluding with Russia to prompt surveillance from officials of the Obama Administration, which itself had obtained a significant reputation of misusing federal agencies such as the IRS and the Justice Department for partisan purposes. Yet there is not yet even of hint from Mueller about examining those very important facts.

When a special counsel vigorously pursues one side of the political divide based on evidence that is highly speculative and derived from demonstrably biased sources, but rather pointedly ignores any and all evidence of a far more substantive nature on the other side, there is ample cause for concern.

There may be a very substantial reason for Mueller’s reluctance. When the FBI was doing its partisan best to affect the Presidential election, ignoring Hillary Clinton’s misdeeds in regards to email security but moving forward with the Trump investigation, Mueller was head of the FBI, remaining in that position until September 4, 2013. While much of the FBI/FISA application activity occurred afterwards, the investigations didn’t suddenly spring to life.  They were, doubtless, the end product of work begun while Mueller ran the FBI, just as much of time when the agency engaged in a partisan refusal to prosecute Hillary Clinton for her email and Uranium trade misdeeds.  A Harvard-CAPS poll reported by The Hill’s Jonathon Easley revealed that “A majority of polled voters say special counsel Robert Mueller has a conflict of interest because of his past ties to former FBI Director James Comey, according to the latest Harvard CAPS-Harris survey.When asked if Mueller has a conflict of interest “as the former head of the FBI and a friend of James Comey,” 54 percent responded that the “relationship” between the two amounts to a conflict of interest, including 70 percent of Republicans, 53 percent of independents and 40 percent of Democrats…the two have been described as “brothers in arms”…”

Some in the media have begun to pay attention to Mueller’s conflict of interest. Glenn Harlan Reynolds, in a USATODAY opinion column, stated that “Special Counsel Robert Mueller has a problem: He has a disqualifying conflict of interest regarding a large part of his work. It involves a choice between investigating or relying on former FBI director James Comey, a longtime close friend of Mueller’s. Ideally, he’ll recognize that and resign. But if he doesn’t resign, Attorney General Jeff Sessions should appoint another special counsel to take over the obstruction-of-justice part of the investigation, where Mueller is disqualified… Mueller is too close to Comey to be impartial, and that violates Justice Department conflict of interest rules.”
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Mueller is not alone in being under a cloud of suspicion. A Rasmussen report  points out that “Loretta Lynch, Sally Yates, James Comey, Andrew McCabe, Jim Baker, Rod Rosenstein, Peter Strzok and Lisa Page. These are just some of the names on the growing list of senior DOJ and FBI officials that, according to the House and Senate Intel Committees, may have illegally conspired to exonerate Hillary Clinton of any wrongdoing in her handling of classified information on a personal server while Secretary of State and to destroy President Trump.”

In a sign of desperation, Mueller, according to Jonathan Swan  in an Axios report, “is subpoenaing all communications — meaning emails, texts, handwritten notes, etc. — that a witness sent and received” from Carter Page, Corey Lewandowski, Donald J. Trump, Hope Hicks, Keith Schiller, Michael Cohen, Paul Manafort, Rick Gates, Roger Stone, and Steve Bannon, from November 1, 2015 to the present.  It’s a classic fishing expedition move by an investigator in search of a crime.

Rep. Trey Gowdy (R-S.C.) believes that a second special counsel is necessary to investigate the Department of Justice.

Mueller, indeed, should be on the receiving end of an investigation into political corruption.  Instead, he is running one.

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Mueller’s Conflict of Interest

DOJ photo

 

There is a problem pundits face when writing about political scandals. A journalist should describe the alleged crimes in a thorough, complete and impartial manner.  Given the nature of politics, however, it is important to also question the motivations of the accusers and those investigating the issue.

For the most part, the media has utterly failed to do so in the ongoing investigation of the alleged collusion with the Russians on the part of the Trump campaign in 2016.

Since Robert Mueller was appointed Special Counsel ten months ago, he has failed to produce any substantive evidence pointing to “Russian collusion” with the Trump campaign.  He has, indeed, failed to do so despite oppressive and highly questionable tactics employed against some individuals who were close to or part of the campaign. Andrew McCarthy, writing for National Review, notes that, rather inadvertently, the recently released Democrat memo reveals that the “FBI and the DOJ relied heavily on uncorroborated, third-hand, anonymous sources in their FISA application… Another major takeaway … is that the FBI and the DOJ withheld from the FISA court the fact that [the information used to authorize the surveillance of the Trump campaign, which is the basis for Mueller’s investigation] was a project of the Clinton campaign.”

Robert Barnes, writing in Law and Crime asks “when will Mueller indict Christopher Steele, FusionGPS, PerkinsCoie, the DNC and the Clinton Campaign?… three things make the Clinton Campaign a potential target: it knew Steele [a former British secret agent] was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Clinton campaign to the Federal Election Commission, by disguising its funding of payments to Steele laundered through a law firm as a ‘legal expense.’ Don’t expect such an indictment.”
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Sally Persons reported in the Washington Times that “Reps. Jim Jordan and Mark Meadows plan on launching an investigation into the Obama administration to find out what they knew about the dossier that forms the basis of the investigation… ‘The Clinton campaign paid for the dossier. The Democrat National Committee paid for the dossier. And if a Russian oligarch was paying the author of the dossier at the same time, that is unbelievable,’ Mr. Jordan, Ohio Republican, said on Fox News.”

Why isn’t Mueller also investigating this?

Bill Gertz, writing in the Washington Times, describes the long-standing immunity the Clintons seem to have when it comes to conspiring with enemy nations. In 1997, Beijing illegally funneled millions of dollars in cash into President Bill Clinton’s 1996 re-election campaign. “The Chinese were backing a president who had allowed American companies to sell high-technology goods to China that ended up boosting Beijing’s missile, warhead and other advanced weapons programs. The investigation into Chinese illegal campaign influence was triggered by reports in early 1997 that the FBI had intercepted communications from the Chinese Embassy outlining a multiyear campaign known as ‘The Plan’ to change U.S. policy, including helping Mr. Clinton’s reelection by funneling cash to Beijing-linked group Asian Americans for the Democratic National Committee.”

Clinton rewarded Beijing by authorizing the sale of Cray super computers to Beijing, which allowed their military to catch up on decades of military research, and, shortly before he left office, gave China major trade concessions which placed a vast number of American factory workers unemployed. During her tenure as Secretary of State, Ms. Clinton played a significant role in authorizing the sale of American uranium, the basic ingredient of nuclear weapons, to Russia. Large donations to the Clinton Foundation and other cash considerations followed.

The FBI, under Mueller’s tenure, didn’t take action.

The Report Concludes Tomorrow.