By Andrew McCarthy
Published February 16, 2019
Ever wonder why people hate lawyers? Consider Deputy Attorney General Rod Rosenstein’s non-denial denial of his participation in discussions of an attempted coup against the duly elected president of the United States.
The story is being given a second life thanks to the hype surrounding the rollout of a new book by Andrew McCabe, the former deputy director of the FBI.
McCabe, of course, was fired after an inspector general investigation found that he leaked investigative information and then lied about it. He has been referred to the Justice Department for consideration of a false-statements prosecution.
There is no doubt that, when he was acting FBI director after President Trump’s May 2017 firing of Director James Comey, McCabe huddled with Rosenstein to mull over options for removing the president from office.
But we have known this for six months – ever since The New York Times published its bombshell report. Indeed, at the time, I wrote a column about it for National Review titled “Rod Rosenstein’s Resistance – weasel words, weasel moves from an emotionally overwrought deputy AG eager to ingratiate himself with Democrats.”
There are really no new revelations in this week’s breathless reporting. The story is a retread, trotted out again because CBS is hoping to generate ratings for its “60 Minutes” interview of McCabe on Sunday night, the launch of the McCabe book tour.
There has been a good deal of commentary this week about whether McCabe and Rosenstein were seriously brainstorming about a coup attempt; or whether, instead, discussions about invoking the 25th Amendment and possibly “wiring up” against the president (i.e., covertly recording him) were just graveyard humor. The truth is somewhere in the middle: The conversation was no joke, but the idea was lunacy.
Let’s put things in perspective. There has been a good deal of commentary this week about whether McCabe and Rosenstein were seriously brainstorming about a coup attempt; or whether, instead, discussions about invoking the 25th Amendment and possibly “wiring up” against the president (i.e., covertly recording him) were just graveyard humor.
The truth is somewhere in the middle: The conversation was no joke, but the idea was lunacy.
No one was in a joking mood when these discussions took place. McCabe was in the midst of formally opening a criminal investigation of the president, and Rosenstein was handwringing over the possible appointment of a special counsel.
McCabe and the FBI’s leadership had been trying to make a criminal case against Trump for months, and McCabe thought – wrongly – that the firing of Comey might be a sound legal basis for an obstruction prosecution.
Rosenstein, meanwhile, was reeling. He had foolishly thought the memo he wrote justifying Comey’s dismissal would win broad bipartisan praise.
Instead, Democrats strategically framed the dismissal as an attempt to obstruct the Russia investigation, and they lashed out at Rosenstein for his part in it.
The deputy attorney general became despondent: convinced that Trump had made him the fall-guy; desperate to get back into the good graces of the anti-Trump Washington establishment, with which Rosenstein had heretofore enjoyed good relations. (At a time when it was difficult for Trump to get his nominees confirmed by the Senate, Rosenstein’s nomination to be deputy attorney general was approved by a lopsided 94-6 vote.)
That is the context of the McCabe-Rosenstein discussion of the 25th Amendment. It was no laughing matter.
Right after he fired Comey, Trump intensified the controversy by rebuking the former director in a White House meeting with Russian diplomats.
Rosenstein and McCabe both concluded that the president was either unhinged or had possibly removed Comey in order to derail the Russia investigation (notwithstanding McCabe’s Senate testimony, right after Comey’s firing, that “There has been no effort to impede our investigation to date”).
That is why the two men talked about “wiring up” against Trump – i.e., having someone covertly record him. This was neither idle talk nor dark humor. It was a logical aspect of their 25th Amendment brainstorming.
If you’re going to convince people that the president is unfit, you need evidence of his unfitness. McCabe and Rosenstein were clearly considering whether they could secretly capture Trump saying things that were incriminating or crazy (or both). They could then use such recordings to try to convince top administration officials that the president needed to go.
On the other hand, while talk about invoking the 25th Amendment was serious, it was also ridiculous. The amendment has nothing to do with the situation McCabe and Rosenstein believed they were confronting: a president who is either potentially obstructing an investigation or not up to the obligations of the office.
The 25th Amendment was adopted in the years shortly after President John F. Kennedy’s 1963 assassination to address the potential problem of a president who is rendered physically or mentally unable to perform his duties – as, for example, President Woodrow Wilson was by a stroke.
The amendment is not a substitute for the Constitution’s impeachment process: If you believe a president is guilty of maladministration – of criminal, abusive, or incompetent behavior – the remedy is for Congress to impeach him, not to declare him physically or psychologically unfit.
Moreover, McCabe and Rosenstein were in no position to invoke the 25th Amendment. By its own terms, it can only be invoked by the president himself, or by the vice president in conjunction with a majority of the Cabinet (or a congressionally authorized committee).
Neither McCabe nor Rosenstein was a Cabinet officer. All they could do was speculate about which Cabinet officials might be amenable to considering a 25th Amendment ploy; and they quickly dismissed the idea because they realized they were nowhere close to a Cabinet majority, let alone to a green light from the vice president.
So yes, it was a serious discussion; but it was also an ill-conceived discussion.
That brings us to Rosenstein’s denial of McCabe’s acknowledgment of their 25th Amendment chatter. As the Washington Examiner reported (the italics are mine):
"As to the specific portions of this interview provided to the Department of Justice by '60 Minutes' in advance, the Deputy Attorney General again rejects Mr. McCabe's recitation of events as inaccurate and factually incorrect," A Justice Department spokesperson said in a statement. "The Deputy Attorney General never authorized any recording that Mr. McCabe references. As the Deputy Attorney General previously has stated, based on his personal dealings with the President, there is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment."
Could this statement possibly be more disingenuous? Consider:
1. Rosenstein says he never authorized recordings. But no one claims that he did. The question is whether he and McCabe discussed the possibility of authorizing them. If he could do so, Rosenstein would deny that this discussion happened at all. But he can’t do that because the FBI memorialized it at the time. Since he can’t credibly deny McCabe’s admission that the two of them talked about recording the president, Rosenstein resorts to the shopworn tactic of distorting the allegation.
2. Rosenstein asserts that “there is no basis to invoke the 25th Amendment.” No kidding. But the issue has never been whether there is currently a basis to invoke the amendment. The question is: Did Rosenstein and McCabe consider whether there was a basis to invoke the amendment back in May 2017, after Comey was fired. Plainly, they did.
3. Rosenstein states that he was not “in a position to consider invoking the 25th Amendment.” Again, he is being deceptive. Of course, he was not in a position to consider invoking the amendment himself. The 25th Amendment does not permit the deputy attorney general to trigger the process for removing an incapacitated president. But the question is whether Rosenstein and McCabe considered the possibility of amassing the majority of Cabinet officials who would be constitutionally qualified to invoke the amendment. McCabe says they considered it and quickly realized there was no prospect of lining up a Cabinet majority. Rosenstein is now embarrassed to have engaged in this discussion; but, again, he cannot credibly deny it outright. So he blathers about not being in a position – i.e., not being constitutionally qualified – to invoke the amendment. That’s beside the point.
It is understandable that the deputy attorney general wishes he hadn’t talked about removing the president. Legally, it was a harebrained idea. As a matter of civics – unelected bureaucrats brainstorming about how to reverse a democratic election – it was remarkably arrogant. But it happened, nonetheless. Rod Rosenstein’s lawyerly evasions can’t change that.