This is like saying, “If Trump thinks there’s an invasion at the border that’s threatening public safety, he should suspend the writ of habeas corpus.” Invasion is the constitutional standard for suspending habeas; technically all she’d be doing in that case is restating what Article I says, just like all she’s doing in this case is restating the legal threshold for 25th Amendment action.
But that’d be a mighty casual attitude towards some frighteningly draconian action, which is why U.S. senators typically don’t float the possibility even in a pedantic that’s-what-the-Constitution-says way. And if they did bring it up, they’d certainly offer their own opinion about whether such draconian action is warranted instead of just tossing it out there as an option.
This isn’t the first time that Warren has pointed to the 25th Amendment as an option in how to rein in Trump, by the way.
The comment came in response to former acting FBI Director Andrew McCabe telling CBS’s “60 Minutes” that then-acting Attorney General Rod Rosenstein had considered the idea out of concern for Trump’s “capacity and about his intent at that point in time,” referring to the days after Trump fired James B. Comey as FBI director.
“My point here is that if they believe that Donald Trump cannot fulfill the obligations of his office, then they have a constitutional responsibility to invoke the 25th amendment,” Warren, a Democratic presidential candidate, said after a rally in Las Vegas. “Their loyalty under law is not to him personally. It is to the Constitution of the United States and to the people of United States.”
The interesting thing when Warren mentions the 25th Amendment is that she seems to intend it more as a criticism of the people around Trump than of the president himself. When she was asked about it in September, it was in the context of that that mysterious anonymous NYT op-ed by a member of the “Resistance” inside the administration. Her response:
“If senior administration officials think the President of the United States is not able to do his job, then they should invoke the 25th Amendment,” Warren told CNN. “The Constitution provides for a procedure whenever the Vice President and senior officials think the President can’t do his job. It does not provide that senior officials go around the President — take documents off his desk, write anonymous op-eds … Everyone of these officials have sworn to uphold the Constitution of the United States. It’s time for them to do their job.”…
“What kind of a crisis do we have if senior officials believe that the President can’t do his job and then refuse to follow the rules that have been laid down in the Constitution?” Warren told CNN. “They can’t have it both ways. Either they think that the President is not capable of doing his job in which case they follow the rules in the Constitution, or they feel that the President is capable of doing his job, in which case they follow what the President tells them to do.”
That’s what she’s getting at with respect to McCabe and Rosenstein too, I think. Enough backbiting. If there’s a 25th Amendment case to be made, call the cabinet together and try your luck. If there isn’t, keep your mouth shut and follow the president’s orders like your job requires. She’s putting pressure on Trump’s inner circle to move against him by trying to deny them the release valve of grumbling about him to the media. If they can complain in public, like McCabe’s been doing on his book tour, they’re more apt to be complacent about his presidency. “I’ve done my duty. I told 60 Minutes everything I know.” If they can’t complain in public, such that the only remaining options are complicity or the 25th Amendment, maybe the 25th Amendment starts to look more viable.
But that’s a path to chaos, as I noted in September. Cabinet action under the 25th Amendment isn’t the end of the process, it’s the beginning. If the cabinet voted to remove the president, the dispute would move to Congress for resolution. Only if two-thirds of both houses deemed him incapacitated for purposes of the amendment would he be removed, and it should go without saying that congressional Republicans would never dare agree to that for fear of infuriating Trump’s base unless it was patently obvious that he’d lost his marbles. So McCabe and Rosenstein would be within their rights to point the finger back at Warren and demand some movement from Congress on this point: The cabinet won’t take the plunge on trying to remove Trump unless it has reason to believe it would have supermajority support in Congress, so if that’s the outcome Warren is hoping for, she should do what she can to build that support. Unless and until she does, it’s pointless to even discuss the 25th Amendment.
Gotta respect the depths to which she’ll sink to pander to hardcore anti-Trump progressives, though. Last week she was wondering aloud whether he’d be a free man next year, this week she’s musing about a coup led by the cabinet via abuse of a constitutional provision designed for cases of severe physical or mental incapacitation. Soon she’ll be fantasizing about him having a stroke or something. Pull it together, Fauxcahontas.