I’m not upset that some of the boys and girls at FBI, DOJ, et. al. had conversations about using the 25th Amendment. I think that’s within their rights. It could fit into the category of subordinates worrying about whether they have been or will be given an unlawful order, and what they should do about it. We should applaud officers taking their duty seriously and addressing concerns about orders being lawful … if the officers are honest about it.
But their proposed method in this case is dishonest. Entrapment with a wire, deceit, etc. – that shows they weren’t really concerned about unlawful orders, they were just plotting a coup to remove someone with whose policies they disagreed. They wouldn’t need a wire if the dispute were honest – the order they were concerned about as being possibly unlawful would already be right out there in the open for all to see.
The honest way to utilize the 25th is for the officer(s) concerned to go to the Vice President and say, “Sir, we believe it is our duty to inform you that we see indicators the President may at this time be unable to discharge the duties of the office.” The Vice President would inquire as to their reasons and then make his determination about whether to proceed with the 25th.
The 25th is not a “one-and-done” move, but rather a process with move and counter-move. The Vice President immediately assumes the duties of the office as Acting President when he and a majority of the Cabinet transmit their letter to Congress declaring the President unable to discharge the duties. But that’s just the opening move.
The President can then submit his own written declaration that no inability exists, and resume the duties of the office unless the Vice President and majority of the Cabinet transmit a second letter within four days of the President’s declaration, repeating their declaration that the President is unable to discharge the duties of the office.
So the first letter can be a surprise, they can blind-side the President to start the process. But then they have to do a second letter, this time with the President forewarned and opposing them. Anyone who had been wavering but went along with the crowd on the first letter … will likely fold when the President makes an impassioned defense. Getting that second letter would be no sure thing.
If there is a second letter, then Congress decides the issue within 21 days. If by two-thirds vote of both Houses the Congress decides the President is unable, then the Vice President continues as Acting President. Otherwise, the President resumes the duties of the office.
So there’s nothing to fear from the 25th, as long as it is used honestly. It triggers a healthy debate about whether the President is able to discharge the duties of the office. Impeachment could be a slower process, so this is a way to deal with incapacity in emergencies. This actually sets a far higher standard than impeachment, requiring two-thirds (of the whole number) of both houses. Impeachment just requires a majority of Representatives present (once a quorum is reached) and then two-thirds of the Senators present (once a quorum is reached).
Again, nothing to fear from the 25th, as long as it is used honestly. But you wouldn’t count votes or wear a wire before deciding to make your case. If you honestly believe it’s necessary, then you would go to the Vice President and state your concerns. How he and the Cabinet vote on it thereafter should not affect the officer’s decision to come forward.
If officer(s) feel it is their duty, then come forward and let the chips fall where they may. The counting of votes and proposing to wear a wire show that in this case the officers had no honest concern about any current or potential unlawful orders. They were just partisan political hacks violating their oath of office to score political points. ERpundit – 02/21/19