Biden administration hit with FOIA suit seeking 25th Amendment-related comms

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A conservative think tank and its public-policy oversight arm filed a Freedom of Information Act (FOIA) suit against the Biden administration seeking any records relating to advice the Justice Department’s Office of Legal Counsel (OLC) may have offered in regard to the 25th Amendment.

Heritage Foundation Oversight Project attorney Kyle Brosnan characterized the OLC as the equivalent of a White House "law firm" that provides legal advice to the executive branch and its officers, adding the timeline for any responsive documents is June 1 to the present day.

Under Section 4 of the 25th Amendment, a majority of the "principal officers" of the Cabinet would transmit to the Senate president pro tem – currently Sen. Patty Murray, D-Wash. – a declaration that the sitting president can no longer perform his duties. The vice president would then be named "acting president." The amendment was ratified following the Kennedy assassination.

In the past, temporary cases have arisen, such as President George W. Bush providing a written declaration that Vice President Dick Cheney would assume his powers while he underwent a medical procedure.

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President Biden speaks to the United Nations. (Getty Images)

In that regard, prior to filing the suit, Brosnan said the Heritage Foundation made a media request through its press arm, the Daily Signal, to the offices of each of the Cabinet secretaries, and then followed up with FOIA requests with each for such communications.

Oversight Project President Mike Howell noted that one Cabinet agency provided an email response that appeared to show the "White House was taking over the comms" on the matter, in his words. 

In a Wednesday interview with the two attorneys, Howell added that concerns about President Biden’s ability to perform his duties are not new, and the media have particularly recently appeared to make such a case, and that discussions in the media and elsewhere spurred the Oversight Project to use legal means to find out whether any such communications exist.

"We don’t have to take George Clooney’s word for it," he said, referring to how the longtime Democrat and actor publicly stated following the CNN debate that Biden showed signs of decline at a prior fundraiser.

He further pointed to first lady Jill Biden’s unusually prominent role in a recent Cabinet meeting, which was met with some public backlash.

Howell said Congress has largely shirked its duty to provide oversight when it comes to the question, "Who is really running our country?"

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The Heritage Foundation building on July 30, 2024, in Washington, D.C. (Andrew Harnik/Getty Images)

"The media clearly decided it can't be Kamala Harris, who would be the constitutional successor or somebody else other than Harris/Biden. Right now, an unelected person is, most likely performing the duties of the president with Biden [conducting] ceremonial duties only when his physical state allows. And so Congress controls the timeline," he said.

Another reason the 25th Amendment is a key topic at present is that there is a very real chance that former President Trump could have been put in a coma or killed by recent attempted assassins, Howell said.

He predicted the trend could continue if Trump were elected, given the heated political rhetoric in some corners on the left.

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President Biden flanked Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin, speaks during a Cabinet meeting at the White House on Friday, Sept. 20. (AP/Manuel Balce Ceneta)

However, positing that Democrats have been loath to even consider utilizing the amendment under the current presidency, it gives Trump and Republicans room to excuse a future Trump presidency from being held to a higher standard when it comes to cognition or ability to perform duties.

"Any of those [assassination attempts] are one day likely to partially... The left has no leg to stand on to say the 25th Amendment needs to be invoked."

Fox News Digital has reached out to the Justice Department and the White House for comment on the lawsuit.