“Can’t Anybody Here Play This Game?”

The 1962 Mets were the worst baseball team in major league history.  Their manager, Casey Stengel, is reported to have captured for all time their spectacular, astonishing ineptitude with his plaintive lament, “Can’t anybody here play this game?”

In related news, The New York Times reported on Friday that House Republicans will meet privately with Deputy Attorney General Rod Rosenstein to question him regarding the recent Times report that Rosenstein suggested taping President Trump to document his instability for the purpose of invoking the Twenty Fifth Amendment and removing him from office.  “There are many questions we have for Mr. Rosenstein, including questions about allegations made against him in a recent news article,” said Representative Bob Goodlatte, chairman of the House Judiciary Committee. “We need to get to the bottom of these very serious claims.”

Really?  Why?  Does Rep. Goodlatte not understand his own job?  Can’t anybody here play this game?

To understand Goodlatte’s chicanery, a little bit of history is in order.  Believe it or not, the United States Constitution originally was somewhat vague about what would happen in the event of the death or incapacity of the President.  When William Henry Harrison became the first President to die in office, the powers and status of Vice President John Tyler were unclear.  Was he the new President?  Was he “Acting President,” whatever that might mean, until a replacement was found?  Tyler had himself sworn in as President and claimed all the powers of the office.  Congress acquiesced and ratified his decision, but the issue remained unresolved for future cases.

Tyler’s actions set the precedent for all future successions where the President died in office.  It did not, however, resolve the question of succession in the event the President did not die, but was incapacitated.  That question is not merely academic.  It arose in 1919, when Woodrow Wilson suffered a massive stroke from which he never fully recovered.  Instead of a proper, legal succession, Wilson’s wife and doctor conspired to keep Wilson’s condition secret from Congress and the nation.  Edith Wilson essentially ran the country in her husband’s stead.

The question arose again later, when Richard Nixon twice temporarily took over as acting President—without ever being sworn in or having legal sanction to do so—during Dwight Eisenhower’s convalescence from a heart attack and surgery.  Finally, it arose after the assassination of John F. Kennedy, when there was initial confusion as to whether Vice President Lyndon Johnson had also been wounded, and therefore who should act as President.

As a result of this history, Congress passed the Twenty Fifth Amendment in 1967.  The Amendment has several sections.  The only one relevant to current events is section four.  Verbatim, the first paragraph states, “Whenever the Vice President and a majority of either the principal officers of the executive departments [the Cabinet] or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

(The second paragraph deals with the issue of how to transfer power back to the President when (s)he regains his/her capacity, and what to do if that capacity is disputed. I have omitted it because it’s somewhat lengthy, and irrelevant right now.)

There is no role for Congress in the process of declaring the President incapacitated, other than to appoint a body other than the Cabinet to determine the issue if necessary.  Congress has no power to second-guess or overturn the decision of the Vice President and the Cabinet, until the President certifies that (s)he has regained capacity.  (In that event, Congress may decide the issue in accordance with the provisions of the second paragraph.)  Congress has no power to fashion a remedy if it believes the Vice President and the Cabinet are mistaken until and unless the President reasserts his/her capacity. The Constitution leaves the initial determination of Presidential capacity entirely to the officers of the Executive Branch.  For Congress to insert itself into the deliberations of the Executive Branch on this issue is a violation of the Constitutional separation of powers.

A clever reader—like you—might well ask, “If the Constitution explicitly authorizes Cabinet members to discuss and decide the issue of Presidential capacity, then how can the news that they’ve done so be considered allegations ‘against’ them?  It’s part of their job.  They have a duty to consider the question; accusing them of doing their duty as if it’s a scandal is absurd.  And if Congress has no role until after the President is declared incapacitated, then what is the purpose of a Congressional investigation into whether someone in the Cabinet has preliminarily entertained the notion of such incapacity?”

The answer, of course, is that Rep. Goodlatte isn’t interested in the issue of Presidential capacity.  He’s interested in shutting down the Russia investigation.

Unless you’ve been hiding in a cave for the past few years (and I wouldn’t begrudge you that, given how it feels to read the news these days), you know that Deputy A.G. Rosenstein is overseeing the Russia investigation following the recusal of Attorney General Jeff Sessions.  Trump and his allies hate that.  They know that firing Sessions outright would provoke a firestorm of criticism, so instead they’ve been trying for many months to make life so unbearable for him that he resigns.  That would enable them to appoint an A.G. who will take control of the investigation and shut it down.

So far, it hasn’t worked.  So they’re now taking a new tack.  In July, Goodlatte and the ultra-conservative Freedom Caucus filed articles of impeachment against Rosenstein.  Freedom Caucus chairman Mark Meadows explicitly stated that one reason for the impeachment effort is the false allegation that the contested allegations in the Christopher Steele dossier were the primary basis for the application for the FISA warrant that authorized surveillance of Trump aide Carter Page in 2016 for possible connections to Russia.  In fact, information from the dossier formed only a part of the information in the affidavit supporting the warrant, and the unverified nature of the information was disclosed to the FISA court.  But Meadows, and Goodlatte, don’t want to acknowledge that.  They also don’t want to acknowledge that Rosenstein approved only the application for the warrant; a FISA court judge found probable cause to approve the warrant.

(Or maybe they don’t understand that Rosenstein didn’t authorize the warrant on his own authority.  Maybe the lawmakers don’t understand how the laws they make operate.  Can’t anybody here play this game?)

Okay, we’re a little deep in the weeds now.  The point is that Goodlatte and his allies know that Rosenstein will not shut down the Russia investigation, he can’t be fired by the A.G. because the A.G. is recused, and he won’t be fired by Trump because everyone would know Trump was doing so to shut down an investigation into possible wrongdoing by him.  So Goodlatte is trying to do Trump’s dirty work for him.  Separation of powers be damned.  The Constitution be damned.  Anything that can be spun in their favor—including a news article claiming that Rosenstein discussed constitutionally protected activity with other members of the Executive Branch—will be used to turn up the heat on Rosenstein in order to force him from office.

And that is about all you need to know about the times in which we live.  The Republican Party is now the party that will betray all conservative values, subvert any norms, and pay any price in order to obstruct an investigation into the extent to which a hostile foreign government sought and was able to undermine our representative system of government.  The party that saw Soviet sympathizers under every rock in the 1950’s now rallies its base in support of the murderous former KGB agent who seeks to destabilize our republic.  It’s a dizzying, nauseating reversal.  We can only hope that this is the result of a little partisan pettiness and a big helping of 1962-Mets-level ineptitude, instead of something much, much worse.

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