By Catherine Herridge
Published February 17, 2019
Former top FBI lawyer James Baker, in closed-door testimony to Congress, detailed alleged discussions among senior officials at the Justice Department about invoking the 25th Amendment to remove President Trump from office, claiming he was told Deputy Attorney General Rod Rosenstein said two Trump Cabinet officials were “ready to support” such an effort.
The testimony was delivered last fall to the House Oversight and Judiciary Committees. Fox News has confirmed portions of the transcript. It provides additional insight into discussions that have returned to the spotlight in Washington as fired FBI Deputy Director Andrew McCabe revisits the matter during interviews promoting his forthcoming book.
Baker did not identify the two Cabinet officials. But in his testimony, the lawyer said McCabe and FBI lawyer Lisa Page came to him to relay their conversations with Rosenstein, including discussions of the 25th Amendment.
“I was being told by some combination of Andy McCabe and Lisa Page, that, in a conversation with the Deputy Attorney General, he had stated that he -- this was what was related to me -- that he had at least two members of the president’s Cabinet who were ready to support, I guess you would call it, an action under the 25th Amendment,” Baker told the committees.
The 25th Amendment provides a mechanism for removing a sitting president from office. One way that could happen is if a majority of the president’s Cabinet says the president is incapable of discharging his duties.
Rosenstein, who still works at the Justice Department but who is expected to exit in the near future, has denied the claims since they first surfaced in the media last year.
Fox News requested further comment from the parties involved. Lawyers for Baker and McCabe declined comment, as did an FBI spokesperson.
In his testimony, Baker said of McCabe’s state of mind: “At this point in time, Andy was unbelievably focused and unbelievably confident and squared away. I don’t know how to describe it other than I was extremely proud to be around him at that point in time because I thought he was doing an excellent job at maintaining focus and dealing with a very uncertain and difficult situation. So I think he was in a good state of mind at this point in time.”
The testimony, for which there are criminal penalties if the witness lies to congressional investigators, comes as McCabe, who was fired last year by then-Attorney General Jeff Sessions, has discussed the alleged meetings as he promotes his forthcoming book.
On Thursday, the Justice Department issued a statement that said Rosenstein rejects McCabe’s recitation of these events “as inaccurate and factually incorrect.” It also denied that Rosenstein ever OK'd wearing a "wire" to tape Trump.
“The deputy attorney general never authorized any recording that Mr. McCabe references,” the statement said. “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.”
During his testimony, Baker acknowledged he was not directly involved in the May 2017 discussions but testified over a two-day period in October that McCabe and Page came to him contemporaneously after meeting with Rosenstein for input in the days after Comey was fired by the president.
As Fox News has previously reported, the eight days in May 2017 between Comey’s firing and appointment of special counsel Robert Mueller were seen as a major turning point in the Russia probe, which has also involved examining whether the president obstructed justice.
“I had the impression that the deputy attorney general had already discussed this with two members in the president’s Cabinet and that they were…onboard with this concept already,” Baker said.
During the closed-door hearing, the former FBI lawyer told lawmakers he could not say whether Rosenstein was taking the initiative to seek out Cabinet members:
Question: “Do you know what direction that went? Was it Mr. Rosenstein seeking out members of the Cabinet looking to pursue this 25th Amendment approach or was it the other way around?”
Baker: “What I recall being said was that the Deputy Attorney General had two members of the Cabinet. So he – how they came to be had, I don’t know, but…”
Question: “So he had two members, almost like he was taking the initiative and getting the members?”
Baker: “That would be speculation on my part.”
Baker also said he did not know the names of the two Cabinet officials.
“Lisa and Andy did not tell me, and my impression was they didn’t know themselves,” he said.
But when the New York Times broke the story in September, it reported that Rosenstein told McCabe he might be able to persuade then-Attorney General Jeff Sessions and then-Secretary of Homeland Security and later White House chief of staff John Kelly to invoke the 25th Amendment.
On Thursday, the top Republicans on the House and Senate Judiciary Committees called for McCabe and Rosenstein to testify before their respective panels, following McCabe's comments about these discussions. Rosenstein did not appear for Capitol Hill testimony to clarify these discussions, despite multiple requests from lawmakers, when Republicans held the majority last year.
On Friday, a spokeswoman for McCabe responded to media reports about his upcoming 60 minutes interview.
"Certain statements made by Mr. McCabe, in interviews associated with the release of his book, have been taken out of context and misrepresented,” the spokeswoman said. “To clarify, at no time did Mr. McCabe participate in any extended discussions about the use of the 25th Amendment, nor is he aware of any such discussions.”
Fox News has reported, based on a source who was in the meeting, that Rosenstein's "wire" comments were viewed as "sarcastic." But Baker testified that it was taken seriously.
Baker testified in October that the alleged discussions took place during an uncertain and anxious time at the FBI and DOJ after Comey’s termination, and that the mood was “pretty dark":
Question: “Did people tell you that the DAG (Deputy Attorney General) was upset?”
Question: “Did they tell you that he was making jokes?”
Question: “Did they tell you that...”
Baker: “This was not a joking sort of time. This was pretty dark.”
In October, during a separate closed-door interview, another senior FBI lawyer Sally Moyer, who sometimes commuted to work with Page, described Page’s private reaction to the claim that Rosenstein’s comments were sarcastic.
“It was when the news hit about the wiretap and the department’s position and what they were saying happened, and she was indicating she did not believe that they were telling the truth,” Moyer said.
Also during the testimony, Moyer said the chances of securing a 2016 surveillance warrant for a Trump campaign aide were only “50/50” without the controversial anti-Trump “dossier,” according to transcripts confirmed by Fox News.
Moyer’s testimony appears to underscore how critical the dossier -- funded by the Democratic Party and Clinton campaign -- was in obtaining the Foreign Intelligence Surveillance Act (FISA) warrant, and appears to conflict with Democratic assertions that the dossier played a limited role in the process.
Asked whether the FBI would have been able to establish probable cause if the application “did not have the Christopher Steele information in it,” Moyer responded: "So I think it's a close call, like 50/50, 51/49. I really think it's a close call."