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The real shock of Andrew McCabe's '60 Minutes' interview

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CNN's Jessica Schneider reports.

Posted: Feb 19, 2019 2:10 AM
Updated: Feb 19, 2019 2:10 AM

Former Acting FBI Director Andrew McCabe set off a firestorm during his "60 Minutes" interview when he said that Deputy Attorney General Rod Rosenstein had initiated a discussion "about how many Cabinet officials might support" removing President Donald Trump from office by using the 25th Amendment. This has prompted outrage among the President's supporters, who see this as nothing short of an attempted coup. Senator Lindsey Graham, chair of the Senate Judiciary Committee, has even promised to commence hearings into the matter.

I am among those who was shocked by the revelation, but not because I suspect a coup. Instead, it is frankly baffling to me why, if the report is true, two high ranking officials would think for even a moment that invoking the 25th Amendment was a plausible way to remove President Trump from office.

Let's start with the basics. When we say the "25th Amendment," we mean section 4 of that amendment. Before the 25th Amendment was adopted, the Constitution offered no means to remove a president who had become disabled. So, for example, when President Woodrow Wilson suffered a debilitating stroke in 1919, there was no mechanism in place, short of impeachment, to replace him in office. Section 4 of the 25th Amendment remedies this problem by allowing the Vice-President to immediately take power from a President who is "unable to discharge the powers and duties of his office."

Already you can see the problem. While McCabe stated that Rosenstein was counting votes among cabinet officials, section 4 has to be initiated by the Vice President. Why would anyone imagine that Mike Pence would go along with the plan? As far as I can tell, Vice President Pence has never given any indication that he thinks President Trump is unfit for office.

But even if the Vice President went along with this scheme, the judgement would have to be confirmed by a majority of the Cabinet or, as the Constitution states, the heads of the Executive Departments. This is why Rosenstein was reportedly counting heads. Here, though, we face another near fictional proposition: There are fifteen such departments, and therefore eight of these officials -- all of whom were nominated by President Trump -- who would have to go along with the Vice President. Even two or three of these officials being willing to support removal seems implausible, but eight is pure fiction.

Let's assume that the Vice President is somehow able to secure the eight votes. This would temporarily allow Vice President Pence to become acting president. President Trump, however, would still have an appeal to the Congress. Here the 25th Amendment puts the burden on the Vice President and the Cabinet, whose evaluation must be confirmed by a distinct two-thirds majority in each house.

Four hundred and thirty-five members serve in the House of Representatives. If there are no vacancies (there are currently three), this means 290 votes would be necessary. Anything less would mean that the President can "resume the powers and duties of his office." If the conversation between McCabe and Rosenstein took place around the time James Comey was fired, in May of 2017, there were only 193 Democrats in the House, and if they all voted to confirm the Vice President's decision, they would still need to be joined by 97 Republicans. That is nearly 40% of the total number of Republicans that were serving in the House.

In the Senate, the situation is equally daunting. Democrats (including the two Independents) had 48 seats in May of 2017. To get to 67 (the two-thirds required), 19 Senators (again, nearly 40% of all the Republicans in the Senate), would have had to vote to sustain the decision of the Vice President and the majority of the Cabinet.

To summarize, in order to remove Trump from office using the 25th Amendment, you would need the support of a loyal Vice President, eight Cabinet members appointed by Trump, more than one out of every four Republicans in the House of Representatives, and almost two out every five Republicans in the Senate.

The bottom line is that section 4 of the 25th Amendment intentionally sets up a complex legal obstacle course to be overcome in order to remove from power a duly elected president. If a president were to suffer a mental or physical disability that is not only serious and obvious, but demands an immediate resolution (for example, a prolonged loss of consciousness), these obstacles would be easy to overcome. Short of this, the obstacles are all but insurmountable.

If Mr. McCabe is to be believed, the biggest surprise to come out of the "60 Minutes" interview was that both the deputy attorney general and acting director of the FBI were seemingly unaware that what they were discussing was utter fantasy.

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