One part pursued Trump for obstructing justice in his firing of Comey. The other was a renewed effort to gather proof that Trump was a covert Russian agent.
The accusations were ludicrous on their face. In addition, from a legal standpoint, McCabe’s new probe constituted an egregious abuse of power. He had no probable cause, no credible evidence, and no reasonable suspicions. His new probe defied the law, ignored or perverted facts, and debased the integrity of a heretofore respected law enforcement agency. He investigated Trump simply because he could. He was now in charge at the FBI. He would do what he wanted. He was oblivious to the president’s constitutionally conferred powers and determined to act against him. He would also utilize his newfound power to pressure Deputy Attorney General Rod Rosenstein to appoint a special counsel to go after Trump. But that’s not all. In a breathtaking move, he and Rosenstein discussed a plan to force the removal of the president by marshalling forces that would evict Trump under the Twenty-fifth Amendment. If it worked, it would be the equivalent of a silent coup.
Trump Was the Target from the Beginning
As FBI director, Comey repeatedly reassured Trump that he was not a suspect in the FBI’s counterintelligence investigation of Russia that had been initiated in July 2016. The great weight of the evidence indicates that that was a lie. Trump was a suspect and had been so since the beginning. Three reasons stand out as proof. First, Comey consistently refused to tell the public what he was telling the president in private. If the director was telling Trump the truth, why not make that same truth available to the American people (unless, of course, it wasn’t the truth)? Second, when he testified in March 2017, Comey implied to Congress that Trump might be a suspect. Third, the Mueller Report recited numerous examples of how the FBI had treated Trump as a suspect before handing over the case to the special counsel. Thus it is apparent that Comey was deceiving the president in his many private assurances. McCabe, as deputy director, was privy to all of that. Why the duplicity? Former federal prosecutor Andrew C. McCarthy surmised, “They were hoping to surveil him [Trump] incidentally, and they were trying to make a case on him.”25
McCabe all but admitted that Comey was lying to the president. The FBI was certainly investigating whether the campaign had somehow coordinated with Russians before the election. As head of the campaign, Trump was obviously within the scope of the inquiry. Yet the FBI was pretending otherwise. In a meeting with McCabe, FBI general counsel James Baker complained that Comey was being, in McCabe’s words, “jesuitical” in saying that “the president was not under investigation.”26 That is a polite description. A more accurate description is that the FBI was lying to Trump. Comey was the messenger, but McCabe was a party to that lie.
When Comey refused the president’s persistent requests to inform the public that he was not under investigation, Trump viewed it as the last straw. Comey already deserved to be fired for insubordination and usurping the authority of the attorney general in the Clinton email case. When the president finally sacked the FBI director on May 9, 2017, McCabe was automatically elevated to replace him. The new acting director dropped all pretense of fairness. He immediately convened his team at FBI headquarters.27 They were the identical people who had twisted the law into a pretzel to absolve Clinton of any criminality.
Within two hours of Comey’s removal, FBI agent Peter Strzok texted his lover, Bureau lawyer Lisa Page, “We need to open the case we’ve been waiting on now while Andy is acting.” Page replied, “We need to lock in [redacted]. In a formal chargeable way . . . soon.”28 It appears that everyone involved enthusiastically agreed to McCabe’s idea of initiating the new and more expansive investigations of Trump. Their true purpose was not to gather evidence for the benefit of the president so that he might counter foreign threats; that is how all counterintelligence cases are handled. Instead, they were attempting to assemble evidence against Trump. It was a secret criminal investigation of the president disguised as a continuation of the previous counterintelligence case. Make no mistake—Trump was the implicit target. Yet according to Page’s July 2018 testimony before the House Judiciary and Oversight Committees, the FBI had had no real evidence of Russian “collusion” at the time Comey was fired.29 There was no “articulable factual basis for the investigation,” as FBI regulations demanded before opening such an investigation.30 That should have stopped them. It did not. They proceeded to violate Trump’s due process rights, as Representative John Ratcliffe (R-TX) observed during the hearing.31
There Was No Justifiable Basis for Opening a Criminal Investigation
In his book, McCabe explained that he had initiated his new investigation of Trump because he feared Trump would fire him, as he had Comey:
If I was going to be removed, I wanted the Russia investigation to be on the surest possible footing. I wanted to draw an indelible line around it, to protect it so that whoever came after me could not just ignore it and make it go away.32
He later told CBS News that he had feared the case would “vanish in the night,” especially if he were to be fired.33
This reasoning is incomprehensible coming from a veteran FBI official. It demonstrates a profound misunderstanding of how the FBI is structured and operates. Investigations do not suddenly disappear because a director, an acting director, or any individual agent happens to depart the Bureau. Once a case is opened, it is continued uninterrupted by others among the 35,000 agents and support professionals who are employed there. Moreover, it is a severe violation of regulations to open a case because an agent or director fears that something might happen in the future. Conjecture about a prospective event, such as being fired, that may or may not occur is not an identified basis for initiating a probe according to the FBI guidelines. McCabe surely knew he was misusing his authority, but he needed to invent an excuse that sounded good.
Simultaneous with the opening of a new investigation of Trump, McCabe met frequently with Rosenstein over the next eight days. The deputy AG was stung by the criticism he’d received for recommending Comey’s termination. He was “glassy-eyed, emotional, upset . . . and shocked,” wrote McCabe.34 In the first meeting, Rosenstein confessed that he was mulling over the appointment of a special counsel to investigate both Russia and Trump. That was music to McCabe’s ears. Over the course of four successive meetings, he pushed Rosenstein relentlessly to name a special counsel and eventually prevailed. Both men knew that such a move would badly damage Trump because independent probes, regardless of their merits, tended to disable a presidency with the cloud of suspicion.
At that point, revenge seemed a top priority. McCabe was furious at Trump for firing his friend and colleague Comey. For his part, Rosenstein felt he was a hapless scapegoat and blamed Trump for it, conveniently overlooking the fact that as deputy attorney general he had volunteered to write the memo recommending Comey’s removal and had spent weeks and even months in advance discussing how to do it with his boss, Jeff Sessions.35 Rosenstein was attempting to rewrite history to exonerate himself. The plan to name a special counsel was the perfect solution for McCabe and Rosenstein. It would serve as an ideal act of retribution against Trump and help salve their own wounds. It is a sad commentary on the lack of character in government officials who exploit their positions of power by resorting to petty vindictiveness.
McCabe and Rosenstein Plot a Coup
Having launched a renewed FBI investigation of Trump and having succeeded in persuading Rosenstein to name a special counsel, McCabe then involved himself in one of the most diabolical plots in US political history: discussion and deliberation over whether to evict the duly elected president of the United States from office and undo the 2016 election results. You would expect a lengthy excursus of these events to be featured as a central part of McCabe’s tell-all book—at the very least, a full chapter. Amazingly, McCabe made no mention of it. Not a word was written about the plot to depose the president under the Twenty-fifth Amendment. Yet when it came time for McCabe to peddle his book on a nationwi
de tour and gin up interest so that he could profit handsomely from its sales, it was all he could seem to talk about.
It began with an ingratiating interview with Scott Pelley on CBS’s 60 Minutes in which McCabe offered a detailed account of how Rosenstein had wanted to secretly record the president to gather incriminating evidence against him:
The Deputy Attorney General offered to wear a wire into the White House. He said, “I never get searched when I go into the White House, I could easily wear a recording device, they wouldn’t know it was there.” Now, he was not joking, he was absolutely serious, and in fact he brought it up in the next meeting we had. I never actually considered taking him up on the offer, I did discuss it with my general counsel and my leadership team at the FBI after he brought it up the first time. . . . I think the general counsel had a heart attack.36
McCabe didn’t stop there. He launched into an unnerving description of how Rosenstein had schemed to use whatever evidence he might gather furtively as a basis for convincing cabinet officials to remove Trump under the Twenty-fifth Amendment to the Constitution for want of mental capacity:
Discussion of the 25th Amendment was simply, Rod raised the issue and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort. I didn’t have much to contribute, to be perfectly honest, in that conversation. So, I listened to what he had to say.
I mean, he was discussing other cabinet members and whether or not people would support such an idea, whether or not cabinet members . . . shared his belief that the president was—was really concerning, was concerning Rod at that time.37
Pelley then asked if Rosenstein had talked specifically about whether there was a sufficient majority of the cabinet who would vote to remove the president. McCabe answered, “That’s correct. Counting votes or possible votes.”
The alarming dialogue between McCabe and Rosenstein about surreptitiously wearing a wire and recruiting cabinet members to depose Trump, if pursued, would have been a lawless misuse of power. Disliking a president’s decision making, even if you believe it to be unjustified or irrational, is not a basis for evicting him from office. McCabe and Rosenstein are both lawyers, and one would assume they had known this. If it had been entirely Rosenstein’s idea, McCabe would have had a duty to immediately notify the inspector general at the DOJ, Congress, or both. Kevin R. Brock, a former assistant director of intelligence for the FBI and a special agent at the Bureau for twenty-four years, was unsparing in his criticism of McCabe:
The mere presence of an FBI acting director in such a meeting, let alone his active participation, is a monumental misuse of position, betrayal of the trust of the American people, and humiliating embarrassment to the dedicated rank and file of the FBI.38
McCabe kept notes of the entire episode with Rosenstein and handed them over to the special counsel. The Mueller Report made no mention of it. That should come as no surprise since Mueller had served a lengthy tenure as director of the Bureau and had every reason to protect the reputation of the institution by covering it up. Congress lawfully demanded the documents pursuant to a subpoena, but both the FBI and the Justice Department were defiant in refusing to produce them. Rosenstein’s role as Mueller’s supervisor surely helped to suppress the incriminating records. The deputy attorney general was obstructing Congress while supervising an investigation into whether the president had obstructed justice. His rank hypocrisy was lost on no one.
In an attempt to tamp down the shocking revelation that Rosenstein had attempted to orchestrate the equivalent of a “soft coup,” one colleague of his portrayed him as merely “joking” or being “sarcastic.”39 Right. Rosenstein has a history of claiming that his words were misinterpreted.40 To hear him tell it, he is the most misunderstood man in Washington. More likely, he is peddling a deceptive excuse. But does this explanation make any sense? Secretly recording the president and mobilizing forces to remove him from the highest office in the land is no laughing matter. It is doubtful that the deputy attorney general was in a jovial or jesting mood, since McCabe depicted him as disoriented, erratic, and distraught over his pivotal role in the Comey firing and the backlash he had suffered. An act of reprisal against the president seemed more plausible for the “frustrated” Rosenstein, who was described by others as “conflicted, regretful and emotional.”41
Rosenstein Denies Everything
Reeling from that televised account by McCabe, Rosenstein dismissed the story as “inaccurate and factually incorrect,” issuing a meticulously worded statement:
The deputy attorney general never authorized any recording that Mr. McCabe references. 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.42
A careful reading of this statement indicates two conspicuous nondenial denials. First, notice that Rosenstein claimed that he did not “authorize” wearing a wire. That is not the same as discussing the idea of wearing a wire or taking steps to do it. He might well have accomplished it without any authorization whatsoever. So that statement is a cagey diversion. Second, whether there was a “basis” to invoke the Twenty-fifth Amendment was not the issue. What’s relevant was whether Rosenstein considered taking action against the president and actively sought to do so, regardless of a proper or legal basis. More to the point, he did not deny seeking an illegitimate basis for removing Trump. So that was another canny misdirection, all of which suggests that Rosenstein pursued the plot to expel Trump from office. There was little chance of obtaining a majority vote in the cabinet, but that was not why the plan was abandoned. The entire enterprise was deemed “too risky,” according to the private testimony of FBI general counsel James Baker, who became privy to the plot.43
Given that McCabe was eventually fired from the FBI for lying and was later referred to federal prosecutors for potential criminal charges, his credibility is inherently suspect.44 Except when you consider that there was at least one percipient witness to the McCabe-Rosenstein conspiracy. FBI lawyer Lisa Page accompanied McCabe to one or more of the meetings in which the subject was broached. Both Page and McCabe then promptly informed Baker of Rosenstein’s desire to evict Trump from office. In closed-door testimony to Congress, Baker revealed that both McCabe and Page had believed that Rosenstein was “serious” about dislodging the president from office.
What’s more, Baker learned 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.”45 Specifically, he understood that those two cabinet officials were “ready to support . . . an action under the Twenty-fifth Amendment.”46 Who were the cabinet secretaries? The New York Times, which first broke the story, identified Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly.47 “One participant asked whether Mr. Rosenstein was serious, and he replied animatedly that he was,” reported the Times.48 Other associates confirmed that. Where did the Times get its story? It is tempting to conclude that McCabe’s fingerprints appeared all over it.49 His motivation to expose Rosenstein’s plot was strong because six months earlier the deputy attorney general had endorsed the decision to fire McCabe for his leaks to the media. What better way for him to trash Rosenstein than to leak once again to the media? If not McCabe, Baker was the probable leaker. He, too, had a motive to deflect blame away from the FBI and onto Rosenstein at DOJ. When rats get trapped in a cage, they begin to turn on one another.
Neither McCabe nor Rosenstein had authority to even consider what would be, under the Constitution, a cabinet-level decision that also requires the consent of the vice president. The acting head of the FBI and the deputy attorney general at the DOJ have no involvement under the provisions of the Twenty-fifth Amendment. It is a measure of their immense hubris that they would connive behind the scenes to instigate and organize the overthrow of
a sitting president under false pretenses. They appear to have insinuated themselves into a decision that did not even remotely concern them. Even more significantly, someone’s opinion that a president has committed maladministration is not a basis for invoking the amendment.
The Twenty-fifth Amendment provides for the president’s removal and replacement in the event that he is “unable to discharge the powers and duties of his office.”50 Although incapacity was not defined, the legislative history summarized by the Congressional Research Service makes it evident that the framers of the amendment envisioned a chief executive who was stricken by a debilitating stroke, heart attack, or bodily injury or had been the victim of a failed assassination attempt and was physically or mentally disabled as a direct consequence. The authors of the amendment made it clear that it “was not intended to facilitate the removal of an unpopular or failed President” or for any other political purpose.51 Senator Birch Bayh (D-IN), the architect of the amendment, stated that the word “unable” meant “an impairment of the President’s faculties” such that he is “unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office.”52 On the House side, the principal framer, Representative Richard Poff (R-VA), cited “some physical ailment or sudden accident” rendering a president “unconscious or paralyzed and therefore unable to make or to communicate the decision to relinquish the powers of his Office.”53 Whatever the reasons that motivated Rosenstein’s maneuvers, the Twenty-fifth Amendment had no application to the circumstances.
Rosenstein miscalculated the political consequences of his memo recommending Comey’s termination. He assumed that both Democrats and Republicans would leap to their feet and give him a standing ovation for finally accomplishing what both parties had called for incessantly. When the opposite occurred, he became overwrought and “angry.”54 His venom was directed at Trump. Though he reportedly regretted what he had done, engineering the president’s removal would have been, by any standard, an extraordinary act of retaliation.
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