Monday, February 18, 2019

McCabe and the 25th Amendment: Two Puzzles

According to news stories based on statements by Andrew McCabe, he tried to arrange to remove Trump via the 25th Amendment. This raises two puzzles:

1. Under the 25th Amendment, the VP plus a majority of the cabinet can temporarily suspend the power of the President. But the next step is for the President to inform both houses of Congress that he is able to function. He then gets back into power unless both houses vote against it by a two-thirds majority

If two thirds of both houses wanted to get rid of Trump they wouldn't need to use the 25th Amendment, they could just impeach and convict. McCabe's tactic only makes sense if he hadn't read part 4 of the amendment the tactic was based on, which seems unlikely. Am I missing something?

2. "You know those paranoid ideas Trump had that the Deep State was out to get him? Well, we were." That's what the story comes down to. It's hard to see how that doesn't help Trump—which, on McCabe's account, is just what he shouldn't want to do. 

So why did he tell it? The least implausible answer I can come up with is that he wanted to sell his book—even if doing so resulted in four more years of Trump. 

Comments welcome.


Rohan said...

I thought you had to have a "high crime or misdemeanor" in order to impeach. Maybe they felt that--post Clinton--the House and Senate would not impeach over raw politics or anything less than a major crime. But a 25th amendment claim would give the legislature enough cover to remove the President.

Maybe you could compare a 25th amendment claim to a "Vote of No Confidence" in parliamentary systems. If the Executive branch declares "no confidence" in the President, the Queen/Legislature signing off on a change of government is almost a formality.

Also, it's Andrew McCabe, not Alexander.

David Friedman said...

Thanks for the correction.

If you read the 25th Amendment, it's pretty clear that it isn't the equivalent of a no confidence vote, which just means that Prime Minister no longer has an effective minority. It's designed to handle a case where the president becomes literally unable to do the job, through senility, disease, or the like--those causes are not specified, but that's what the form of the rules implies.

Nobody knows what counts as a high crime or misdemeanor, so the real requirement is that enough members of each house want to impeach and convict.

Attempting to be a Skeptical Thinker said...

For analysis of these sorts of issues, I usually refer to a site called The Conservative Treehouse (

I believe the consensus is that this is a struggle between McCabe and Rosenstein.

Rohan said...

Aren't you being a little inconsistent here? You dismiss the requirement of a high crime or misdemeanor for impeachment, saying "the real requirement is that enough members of each house want to impeach and convict".

Yet somehow invoking 25th amendment requires being true to the spirit of the rule, that the president must genuinely be incapacitated. If the House can ignore the high crimes requirement, why won't they just ignore the genuine incapacitated requirement, especially as the VP/Cabinet are willing to claim such a thing, instead of honourably resigning over political differences?

Also, it's not literally a No Confidence vote, it's similar in that a 25th Amendment claim is a sign that the Executive cannot function anymore. The president's handpicked VP and Cabinet oppose him and are not willing to just resign. The House/Senate might reasonably decide that the president is too damaged to continue in office, and a "clean reset" would be the best path forward for the country, even if the president isn't technically incapacitated.

Unknown said...

The 25th Amendment is faster. It took over a year to impeach Clinton. It would certainly take less time for the Cabinet to come to a decision. I don't know how long the subsequent vote in Congress, but it seems like it would be faster.

maurile said...

I haven't seen a story saying that McCabe tried to arrange Trump's removal under the 25th Amendment. I've seen McCabe say that Rod Rosenstein broached the subject (but didn't actually attempt removal).

Raphfrk said...

There are some ambiguities about who has power if the VP and the President disagree.

The full process is

-- VP + Cabinet Majority declare President unfit --

VP is now Acting President

-- President declares himself fit --

The VP + Cabinet Majority has 4 days to re-assert their declaration.

Who has the powers of President for those four days?

It could work on an "Objection" basis.

When the President says that he is fine, the VP objects and refuses to return the powers. He has 4 days for the VP + Cabinet Majority to resubmit their declaration.

In the case where the President's incapacity is that he has become delusional, it would be a bad idea to give him back Presidential powers.

-- VP + Cabinet declare the President unfit a second time --

Congress must assemble and has 21 (or 23) days to decide.

Both Houses must vote by 2/3 majority to declare the President unfit.

-- Congress declares the President unfit --

VP remains as Acting President

-- President declares himself fit again --

Since it says "Thereafter", I think the President has the right to just keep declaring himself fit and Congress would have to keep deciding by 2/3 majority that he is not fit.

The President could mess up Congress' vacation plans, though that may increase the chance of declaring him unfit.

David Friedman said...


I don't think I'm being inconsistent. The 25th Amendment strategy only works if two-thirds of both houses are willing to back it. I think it is obvious that that wouldn't happen.

High crimes and misdemeanors are not well defined, so a Congress willing to vote to pretend the President was incapacitated when he wasn't could just as easily vote to impeach and convict.

Peter Donis said...


From the post:
If two thirds of both houses wanted to get rid of Trump they wouldn't need to use the 25th Amendment, they could just impeach and convict.

Actually, impeachment is a *lower* bar than the 25th Amendment as far as Congress is concerned. The 25th Amendment requires a two-thirds vote of both houses for Congress to decide that the President is unfit. But impeachment only requires a majority vote of the House; the two-thirds vote is only required for the Senate to convict.

Joe said...

Perhaps Mcab thought that even attempting to remove trump would further hurt Trump's political capital? I.e he knew he wouldn't be successful but that he could hurt trump.

(of course, why would the cabinet betray trump when trump could just come back and punish them?)

There is also the prospect that he just didn't think it through, and was unaware of the 2/3rds rule.

I honestly don't expect to know anything resembling the truth of the matter for quite some time to come, I do suspect that Trump has pissed off the more unaccountable parts of the intelligence services career bureaucracy of government and it will undermine him in none public ways that will remain secret.

Though, by nature of the unaccountability, any specific thoery of said meddling will be highly suspect.

That being said, I think that's good. I'm pro deep state meddling as far as Trump is concerned. I prefer governments that are more episodocratic oriented than straight up republics or democracies.