"Remarkably Arrogant!"

Andy McCarthy wrote yesterday in Fox News,

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 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.

...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.

...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.

Read more here.