At the moment, President Trump is trying to create the impression that if Democrats win in November, he will be impeached. He might even be right. Republicans like the idea because impeachment seems like such a far-fetched and unjustified measure, and they want to score points from the Democratic excesses that will surely accompany a Democratic victory.
But the thing about impeachment is that it is at least a small-D democratic measure. The House of Representatives, which is elected anew every two years, must initiate the process of removing a president from office. The Senate, whose members also face periodic elections, must then choose to remove him by a very large majority that cannot be obtained due in the current environment due to any amount of mere partisan bickering.
The hurdles to impeachment, and the political punishment for trying it without merit, are great enough that on their own they discourage abuse of the process.
This cannot be said of attempts to remove a president by other means.
The New York Times reported this week that in May 2017, Deputy Attorney General Rod Rosenstein suggested that acting FBI Director Andrew McCabe make secret recordings of his conversations with President Trump. In the same conversation, he also discussed removing Trump from power using the 25th Amendment.
Recall that at that time, Trump had just fired FBI Director James Comey. The Times report is disputed, but it’s not the first time the 25th Amendment has come up in serious conversation since Trump took office.
The process of removing a president under the 25th Amendment is not a light matter — it’s weightier even than impeachment. The power of deeming a president incapable of governing is fittingly reserved to each president’s closest allies. It must be approved not just by his vice president, but also by his Cabinet as a whole, just in case the former acts from unsuitable motives of ambition.
The ratification of the 25th Amendment, which ended in 1967, did not change the fact that the will of the presidential electors is supreme. Except in the gravest and most exceptional circumstances — say, a president becoming comatose or beset by madness — it must not be overridden by others.
Nor can it be overridden by reasons that do not touch directly on the national survival. And we do not mean by this phrase any melodramatic and inaccurate description of Trump as a threat to the republic’s survival. Although Trump clearly irritates many people with his bombast and his character, no amount of mere irritation could ever justify his removal by such an irregular means. No policy choice could justify it, either.
The 25th Amendment was not ratified as an end-run around the required votes for impeachment and removal, but rather as a safeguard of the executive capacity in cases such as presidential assassination attempts or grave physical or mental illnesses.
Even a president’s grave moral turpitude or the commission of high crimes, the likes of which would seemingly justify impeachment, could never justify invocation of the 25th Amendment. Even if the president clearly and indisputably committed treason on national television, the 25th Amendment would not be the remedy.
If Trump had promised Russian President Vladimir Putin total decision-making power over the entire U.S. government, and received in return a billion dollars in cash to directly influence the election, this still would not justify invocation of the 25th Amendment.
And if, having already done that, Trump also fired everyone investigating him for treason, that also would still not amount to incapacity to govern. The proper response would be impeachment.
We all hear constant talk of the “deep state” from Trump and his allies, and perhaps it is often overblown. But if Rosenstein stands truly accused, it would be the worst sort of deep-state behavior — a coup attempt coming from a government bureaucracy that is not entitled to make such judgment.
It is quite possible, as some officials interviewed by the Washington Post have suggested, that Andrew McCabe created false rumors and a false impression of what Rosenstein actually said. He may be completely innocent of this charge. But if the accusations are true, he should be dismissed from his current job immediately and perhaps also referred for further investigation.
