The Failure of the 25th Amendment - Part III

or did Pence have the votes

Did Pence have the cabinet votes on January 7, 2021 to become Acting President under Section 4 of the 25th Amendment?

Before handicapping how Secretaries Pompeo, Mnuchin, Miller (acting), Rosen (acting), Bernhardt, Perdue, Ross, Scalia, Azar, Carson, Chao, Brouillette, DeVos, Wilkie, and Wolf (acting)¹ might have voted on January 7, 2021, let’s at least look at Mike Pence’s case for a Section 4 removal of the President.

First, Pence would point out the mob (or at least a significant percentage of them) wanted to hang him, Pelosi, and other members of Congress. And the reason for the violence that ensued at the Capitol was that Donald Trump incited them to act.

Second, much of the reason for the violence was that Pence would not take part in an illegal and unconstitutional act, i.e. refuse to count certain state’s electors and “entertain” accepting alternative slates of electors (which were known to be fake). Pence’s refusal to take part in the nonsensical coup and Trump’s attack on Pence for that refusal incited the violence that ensued.

Third, Pence would point out that the criminality of this act was going to lead to an Impeachment and potential conviction in the Senate. Pence would certainly point out the slew of Republicans blaming Trump and even calling for his resignation².

Fourth, it’s not the first time Section 4 invocations were considered regarding Donald Trump. Mental health criticisms notwithstanding, the firing of James Comey led Acting FBI Director Andrew McCable to engage in high level discussions with Deputy Attorney General Rod Rosenstein about approaching cabinet members about Section 4 removal³.

How serious was that discussion? Senator Lindsey Graham (R-SC), who chaired the Senate Judiciary Committee promised a Senate probe over the revelations⁴. Not sure what purpose the hearings would serve as Section 4 was written to invite the assessment not to eliminate any consideration.

On November 7, 2020, Pence denied he had ever entertained invoking the 25th Amendment to remove President Trump⁵, but that was a “stand by your man” political statement with an eye to his political future and a response to political revelations in a book called “A Warning” that was due to be released on November 19th⁶.

The key factor in the alleged potential invocation of Section 4 in 2017, according to Huffington Post, was:

“The controversy around the firing (of James Comey), which the president did not appear to anticipate, and Mueller’s appointment infuriated Trump, and aides described his behavior at the time to HuffPost and other news publications as “unhinged.

"[...]Trump’s behavior at the time was so erratic that it ignited the internal discussions about the 25th Amendment”⁷.

Four months into his presidential term and people within Trump’s inner circle (and arguably loyal to him) were vetting his removal.

So the vote count:

Given their resignations after the fact before Trump’s term ended: DeVos (Education) and Chao (Transportation) are definite “yes” votes. Throw in Azar (HHS), as well.

Acting Attorney General Rosen is likely a "yes" as well — the weekend prior to the insurrection nailed that decision down⁸.

Chao and DeVos, notably, had political bases independent of Trump (Kentucky⁹ and Michigan, respectively). Who else had them?

Pompeo hinted about making a 2020 Senate run in Kansas, where he once served as a Congressman; but he got the job at State because he was a staunch Trump loyalist. Even though State (and his prior position as CIA Director) allows for some distance, it also doesn’t provide the kind of day-to-day interaction that might make one think Trump was mentally unable to do his job. He is a “no” vote.

David Perdue also had his own political base (Georgia). Given the fallout over Trump’s early January 2021 call to GA Secretary of State Brad Raffensperger and Trump’s attacks on the electoral integrity, Perdue is a likely “yes” given his reaction to the January 6th¹⁰ and Trump’s attacks on Kemp et al. for failing to back his claims about election fraud.

Ben Carson (HUD) is a strong “no” -- he more or less took the thoughts and prayers solution to a violent attempt to subvert the certification of Joe Biden as the incoming President and stop the peaceful transition of power¹¹.

Other “no” votes are Mnuchin (Treasury) and Bernhardt (Interior). Mnuchin (Treasury) got richer working for Trump. Bernhardt worked in prior Republican Administrations and was a partner in a law firm with deep Republican connections— he wasn’t going to burn political bridges with two weeks to go.

Ross at Commerce is likely a “no” as well. His tweet “violence is never the proper solution” plus his machinations to twist the 2020 census to the GOP’s advantage, per Trump’s view, sounds like a loyalist to the bitter end.

Eugene Scalia is a likely “yes” as he called on Trump to concede in December 2020¹² —that is the "rule of law" approach, i.e. “Mr. President, your legal options are now all gone, you lost.”

Dan Brouilette (Energy) is a "no" only because Trump finally conceded. His twitter response to January 6th was on the wishy-washy side so he is a "maybe" at best.¹³ A frighteningly poor assessment for the person charged with overseeing our nuclear arsenal.

The two ends of our military establishment, Departments of Defense and Veterans Affairs, are splits on Section 4 invocation. Wilkie (Veterans) was rebuked in military news journals for his late (he was the last Secretary to repudiate the violent attack on the Capitol) and rather lackluster statement criticizing Trump’s actions. So, Wilkie is a “no” vote.

Christopher Miller, Acting Secretary of Defense, made a far more forceful repudiation:

"Our Republic may have been disrupted yesterday, but the resolve of our legislators to conduct the people's business did not waver. Due to their efforts, supported by local and federal law enforcement and the National Guard, the attempts of those who tried to stop our government from functioning failed

"I strongly condemn these acts of violence against our democracy. I, and the people I lead in the Department of Defense, continue to perform our duties in accordance with our oath of office, and will execute the time-honored peaceful transition of power to President-elect Biden on January 20."¹⁴

Miller is a definite “yes”. It’s worth noting that Miller issued a memo on January 4th that required the D.C. National Guard, which Trump had the authority to order to deploy, needed his personal approval to use weapons at upcoming pro-Trump demonstrations¹⁵.

It should be noted, the entire Trump Administration was up in arms over January 6th — condemnations and resignations reigned the days afterwards¹⁶. Being shocked and outraged is a sign of being out of the loop and well outside Trump’s conspiratorial hub.

So, there is a likely 7-7 tie here. No wonder Mike Pence didn’t act — he might have actually had the power to make himself Acting President. To be fair, Brouillette, Bernhardt, Perdue, and Wilkie might be a bit maleable vote-wise; but given the political mood after January 6th, it isn’t hard to see a lopsided vote to remove Trump.

Wait, what about Chad Wolf, Acting Secretary of Homeland Security?

Well, he is a definite “yes” to remove Trump under Section 4 of the 25th Amendment. After Wolf criticized President Trump for inciting the violence at the Capitol. The criticism was enough for Donald Trump to withdraw his permanent Secretary nomination — which Trump did 90 minutes after Wolf’s statement.

But his vote would not and could not be considered and likely a slew of general counsels to the various Secretaries would have pointed it out at a Section 4 Cabinet meeting.

Why? Chad Wolf and his predecessor, Kevin McAleenan, were both appointed acting Secretaries at Homeland Security outside the order of succession¹⁷ and both their tenure's were being subjected to legal challenge as a result.

A key factor in the failure of Trump’s failed coup attempt on January 6th, which led to the violent Insurrection, was that he could not depend upon either acting Attorney General Jeffrey Rosen or Acting Deputy AG Richard Donoghue to do his legal bidding.

Thus the disturbing theater that occurred in the Oval Office on January 3, 2021¹⁸, where Trump dangled the Attorney General job in front of Jeffrey Clark, Acting Attorney General for the Civil Division, and demanded Rosen and Donoghue tell him why he shouldn’t.

Trump knew, because of the legal challenges to Wolf and McAleenan's tenures at Homeland Security, he would have to fire Rosen and Donoghue to legally make Clark his Acting Attorney General. Rosen’s assurances that firing him and Donoghue would lead to hundreds of resignations was the last thing Trump needed.

With so much revulsion, animus, and shock over the January 6th Insurrection — a Section 4 Cabinet meeting should have been a must.

But it is not a requirement that the cabinet meet to consider it — only that the Vice-President and a majority can do it. Not even if the most of the President’s cabinet thinks he ought to be removed.

NOTE: Parts I and II of this series were published at the end of July — please read them first, if you have not already.

1. They are listed in order of succession. See footnote 2 in Part I if necessary.

2. https://www.nytimes.com/2022/04/21/us/politics/trump-mitch-mcconnell-kevin-mccarthy.html

3. https://www.cnn.com/2019/02/14/politics/andrew-mccabe-obstruction-of-justice/index.html

4. https://www.politico.com/story/2019/03/15/graham-fbi-mccabe-rosenstein-1223370

5. https://www.politico.com/news/2019/11/07/mike-pence-25th-amendment-trump-067319

6. https://www.huffpost.com/entry/anonymous-book-warning-mike-pence_n_5dc376a1e4b00551388271cd?fwj

7. https://www.huffpost.com/entry/anonymous-book-warning-mike-pence_n_5dc376a1e4b00551388271cd?fwj

8. Donald Trump's Big Weekend

9. Chao is married to Sen. Mitch McConnell (R-KY).

10. https://www.wjcl.com/article/us-secretary-of-agriculture-reacts-to-events-at-us-capitol/35154839

11. https://thehill.com/homenews/administration/533391-ben-carson-dismisses-25th-amendment-talk-as-a-nation-we-need-to-heal

12. https://thehill.com/homenews/house/3555900-scalia-called-on-trump-to-concede/

13

Dan Brouillette @SecBrouillette

Yesterday we witnessed a tragic event in our Nation's Capitol. As we reflect on this moment, two things must be clear.

14. https://www.military.com/daily-news/2021/01/08/2-days-after-riots-va-secretary-wilkie-last-cabinet-member-respond-capitol-siege.html

15. https://www.snopes.com/fact-check/national-guard-capitol-riot/

16. https://www.govexec.com/management/2021/01/cabinet-secretaries-condemn-violent-protests-us-capitol/171254/

17. https://www.govexec.com/management/2021/01/cabinet-secretaries-condemn-violent-protests-us-capitol/171254/

18. See Donald Trump’s Big Weekend above.