The conservative think tank and its public policy watchdog have filed a Freedom of Information Act (FOIA) lawsuit against the Biden administration, seeking records regarding any advice the Department of Justice's Office of Legal Counsel (OLC) may have provided regarding the 25th Amendment.
Kyle Brosnan, an attorney with the Heritage Foundation Oversight Project, characterized OLC as the equivalent of a White House “counsel office” that provides legal advice to executive branch agencies and their staff, adding that the deadline for submitting relevant documents runs from June 1 to now.
Section 4 of the 25th Amendment provides for a majority of the “principal officers” of the Cabinet to transmit a declaration that the sitting president is unable to act to the President pro tempore of the Senate (currently Senator Patty Murray, Democrat of Washington State). The Vice President is then appointed “Acting President.” The amendment was ratified after Kennedy's assassination.
There have been temporary instances in the past, such as when Vice President Dick Cheney issued a written statement assuming presidential powers while President George W. Bush underwent a medical procedure.
After the debate, Democratic state officials largely backed Biden, while party leader Chari suggested Republicans would drop Trump's candidacy.
President Biden speaks at the United Nations. (Getty Images)
In this regard, Brosnan said that prior to filing the lawsuit, the Heritage Foundation made media requests to each minister's office through news outlet Daily Signal and then made Freedom of Information Act requests to each minister for such communications.
Mike Howell, executive director of the Oversight Project, noted that a Cabinet Office agency responded in an emailed response that, in his words, seemed to indicate “the White House had control of the communications” on the matter.
In an interview with the two lawyers on Wednesday, Howell said concerns about Biden's ability to do his job are not new, but added that the allegations have appeared to be made especially recently in the media, and that discussion in the media and elsewhere prompted the surveillance project to use legal means to find out whether any such communications existed.
“You don't have to take George Clooney's word for it,” he said, noting that the longtime Democrat and actor had publicly stated after the CNN debate that Biden's approval rating had shown signs of declining at previous fundraisers.
He also pointed to First Lady Jill Biden's unusually prominent role in recent Cabinet meetings, which sparked public backlash.
When it comes to the question of “who is really running our country,” Howell said Congress has largely neglected its oversight duties.
Flashback: Biden's Cabinet doubles down on support for president after debate
The Heritage Foundation Building in Washington DC on July 30, 2024 (Andrew Harnick/Getty Images)
“The media has clearly decided that no one other than Kamala Harris, his constitutional successor, or Harris/Biden can be president. We now have an unelected person performing the duties of the presidency, likely alongside Biden. [conducting] “I will only perform my ceremonial duties as my health permits, so the council will control the schedule,” he said.
Howell said another reason the 25th Amendment is an important topic right now is because it's very likely that former President Trump will end up in a coma or be killed in the recent assassination attempt.
He predicted that this trend could continue if Trump is elected, given the heated political rhetoric on some parts of the left.
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President Biden spoke at a Cabinet meeting at the White House on Friday, September 20, accompanied by Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin. (AP/Manuel Balce Senator)
But assuming Democrats are unwilling to even consider using the amendment under the current president, it gives Trump and the Republicans leeway to exempt a future Trump from being held to higher standards regarding cognitive ability and ability to perform their jobs.
“Any of them [assassination attempts] It's likely that this will happen partially at some point… The left has no basis to argue that the 25th Amendment needs to be invoked.”
Fox News Digital has reached out to the Department of Justice and the White House for comment on the lawsuit.
