The Real Nightmare Scenario: A Sick Mike Pence

The Real Nightmare Scenario: A Sick Mike PenceOctober 3, 2020

A Covid-19 outbreak inside the White House brings into sharp relief the literal nightmare scenarios that constitutional and presidential scholars have warned about for decades. What happens if Donald Trump is sick or incapacitated and unable to fulfill the duties of the presidency? And what happens if both Donald Trump and Vice President Mike Pence get sick? Who takes over then?

Most Americans—if they think of presidential succession at all—probably assume that the government has clarified and settled the questions of who takes over at the White House in crisis situations. But there are two major problems with U.S. executive succession rules that inject enormous uncertainty: First, while the 25th Amendment neatly covers what happens if the president resigns, dies or falls sick in office, it says nothing about a sick or incapacitated vice president—a problem that led Dick Cheney to write a secret resignation letter and have his White House lawyer hide it away in case his heart problems ever left him unable to function as vice president.

Second—and more problematic for a scenario where Nancy Pelosi is second in line to the presidency—the presidential succession plan laid out by Congress is legally murky and might actually be unconstitutional. Today, it remains an open debate whether the House speaker is actually eligible to succeed to the presidency.

All this is to say that, while the news that Trump has tested positive and is showing symptoms of Covid-19 is worrisome, true fear about the future of the Republic shouldn’t settle in until either the vice president falls ill or the vice president takes over. Both these scenarios could lead to potential power struggles and fraught questions about whom military and government officials should be listening to.

We’re obviously a long way from Trump being unable to fulfill the duties of the presidency, and Pence and his wife have now tested negative for Covid-19—his separate travel schedule this week makes it seem likely that he’s dodged whatever disease vector has already sickened Hope Hicks, Donald Trump and first lady Melania Trump. But any future questions about the vice president’s health might mean the nation would be in for a rocky time.

Given the current makeup of the executive branch, it’s not hard to imagine a scenario in which Secretary of State Mike Pompeo might, with the help of an aggressive attorney general, William Barr, challenge any attempt by Nancy Pelosi to ascend to the presidency if both Trump and Pence are incapacitated by Covid-19—perhaps even preemptively putting out a legal opinion that Pompeo is legally next in line for the acting presidency.

Could Nancy Pelosi assume the acting presidency and fire Barr to get her own contrary legal opinion? Would Barr treat such an order as legitimate? Would the Supreme Court weigh in? How those questions would be answered would almost certainly hinge less on actual legal fights and more on vague public sentiments—questions such as whether the president or vice president looks likely to recover.

“The nation could thus be deeply divided, in a hard-to-resolve way, on the very basic question: Who is the (acting) president of the United States?” legal scholars Jack Goldsmith and Ben Miller-Gootnick wrote back in March at the beginning of the Covid-19 pandemic.

The 25th Amendment was a product of the Cold War, a desire to bring clarity to presidential succession as nuclear missiles collapsed time and space such that American government needed to know minute-by-minute who was eligible to succeed to the presidency. Until it was ratified in the late 1960s, in fact, the presidential line of succession had been a strange amalgamation of informal secret letters, confusing and shifting congressional legislation, and a seemingly unintentional misinterpretation of the Constitution itself.

Even when the Founders sat down to debate presidential succession, it wasn’t an academic argument. In an era when daily life was much more uncertain and hazard-filled, colonial governors had a track record of high mortality—nearly a third had died in office. Who should take over in the event of a president’s death? Gouverneur Morris of Pennsylvania originally argued for the chief justice of the Supreme Court, while others pushed for the president of the Senate; however, both proposals seemed to the Founders to inappropriately mix the branches of government. The heir to the executive should come from the executive branch, so a late suggestion came to establish the “Vice-President,” who would be elected in the same manner as the president, while also serving as the president of the Senate on a day-to-day basis.

After the vice president, U.S. law later laid out only the House speaker and the president pro tempore of the Senate in the line of succession for most of America’s first century—a period when four presidents and five vice presidents died in office. It was a thin bench for the highest office in the land. Moreover, there was no mechanism at all for dealing with a sick or incapacitated president, so for more than a hundred years, the United States dodged constitutional crises only through luck and chance. Sixteen different times—a period totaling nearly 38 years—in the country’s first nearly 200 years, the U.S. had been without a vice president. Seven of the first 34 presidents—one out of five—suffered some period of incapacitation, during which time there wasn’t really anyone technically able to execute the powers of the presidency.

When, in 1841, William Henry Harrison became the first president to die in office, a spirited debate unfurled in Washington over whether Vice President John Tyler actually assumed the presidential office or merely the duties and power therein. John Quincy Adams, himself a former president and in 1841 a member of Congress, believed that Tyler was merely the “Acting President” or “Vice President, Acting as President.” Tyler moved into the White House and, despite ongoing attacks from his political opponents who would refer to him as “Your Accidency,” he was never seriously challenged as president; for years to come, though, he would return unopened any mail that came to the White House addressed to “Acting President” or “Vice President Tyler.”

The odd thing, Constitutional scholars now agree, is that Tyler was almost certainly wrong about becoming president. Little was known in the 1840s about the debates that went on during the Constitutional Convention—Madison’s notes from the debates, for instance, were only published for the first time in 1840, and the first major scholarly review of the Convention wasn’t published until 1911. But subsequent study has shown that the Founders clearly intended for the vice president to merely “act” as president during a vacancy or incapacity. At least three other sections of the Constitution actually refer specifically to the vice president only acting as president. The only way the Founders ever intended for someone to become president was to be elected by the nation; anyone else would merely be “acting.” Yet Tyler’s precedent would guide the nation for the next 120 years. No one questioned the “president” title when Andrew Johnson took over from Abraham Lincoln’s assassination or when Calvin Coolidge took over after President Warren G. Harding’s death from a heart attack.

Picking a successor for vice president was trickier—and many times impossible. Through the 19th century, Congress elected the speaker and Senate president pro tem only while the body was in session, meaning that those posts sat vacant through the long periods of congressional recess. When Grover Cleveland’s vice president, Thomas Hendricks, died in 1885, Congress was out of session, and had anything happened to Cleveland, no one knew who would become president. Presidential aides were so concerned that they recommended Cleveland not even travel to Indiana to attend Hendricks’ funeral. That potential crisis finally nudged Congress to act, and in 1886 it added Cabinet members to the line of succession ahead of the congressional leaders.

Harry Truman, 60 years later, tried to reverse that, arguing that the speaker of the House has the closest thing to a national electoral mandate after the elected president. As a result, in 1947 Congress passed a law that outlined the modern succession line—the vice president, the speaker, the Senate president pro tem, and the Cabinet secretaries in descending order of their department’s founding (leading to today’s quirk that the Department of Homeland Security, one of the officials most versed in national security, is actually dead last in succession, although acting Secretary Chad Wolf is ineligible for the presidency since he’s not a Senate-confirmed secretary).

Beyond just a clear line of succession, the presidency after Truman made clear that the U.S. government needed to wrestle with presidential illness or incapacity too. Dwight D. Eisenhower was hospitalized for seven weeks after a 1955 heart attack amid the height of the Cold War. “It was not until two weeks after the heart attack that the tension in Washington was eased,” then-Vice President Richard M. Nixon recalled years later. “The ever-present possibility of an attack on the United States was always hanging over us. Would the President be well enough to make a decision? If not, who had the authority to push the button?” The next year, Eisenhower had urgent intestinal surgery, as most of the nation slept, from 2:30 a.m. to 4:35 a.m., an experience that left Nixon worried. “On several occasions afterwards, he pointed out to me that for the two hours he was under anesthesia, the country was without a Chief Executive, the armed forces without a Commander-in-Chief,” Nixon wrote later. “In the event of a national emergency during those two hours, who would have had the undisputed authority to act for a completely disabled President?” Then, amid the high-stress weeks of the Cold War following the launch of Sputnik, Eisenhower in November 1957 suffered a minor stroke that left him disoriented and his speech slurred.

Eisenhower’s answer was an informal agreement, hidden from the American people and unknown until decades later: In February 1958, he summoned Nixon and Attorney General William Rogers to the Oval Office and handed them a four-page letter outlining conditions under which the vice president could assume the powers of the presidency. He distributed just three copies—one to Nixon, one to Rogers and one to the secretary of State. He wrote that Nixon “after such consultations as seems to him appropriate” could just assume the powers of the presidency if Ike seemed unable to function. It was a wild, extra-constitutional arrangement—one that cried out for a more formal process in the age of nuclear weapons. In the years ahead, John F. Kennedy and Lyndon B. Johnson both wrote similar letters, a system that would work only as long as there was total trust between a president and a vice president. Otherwise, it was a literal recipe for a coup.

The letter of agreement between Kennedy and Johnson read, in part, “The Vice President agrees to serve as Acting President ‘after such consultation as seems to him appropriate under the circumstances’” and allowed the vice president to operate “with a free mind that this is what the President intended in the event of a crisis.” JFK’s assassination raised new problems and concerns (what if JFK had lain comatose after being shot, rather than dying immediately?) and left Johnson without a vice president for 1964. Through the end of that presidential term, House Speaker John McCormack kept in his Capitol office safe a secret two-page agreement that he and LBJ signed together on December 23, 1963, outlining when he could take over the presidency if Johnson fell ill or was otherwise incapacitated. “It is outside the law,” McCormack said later, “but it was the only thing that could be done under the circumstances.”

Finally, Congress moved on the 25th Amendment, which created the first-ever mechanism for replacing a vice president in the event of resignation, death or vacancy and created the first-ever system for dealing with presidential incapacity or illness. It arrived just in time: The resignation in 1973 of Nixon’s vice president, Spiro Agnew, amid the Watergate scandal was the first use of the 25th Amendment, allowing Gerald Ford to be nominated and confirmed by Congress as vice president—and later to succeed to the office and nominate his own vice president. It made Ford the first American ever to become president without being elected to either the presidency or vice presidency.

And yet there are two major holes still in the 25th Amendment and the related Presidential Succession Act that, at least until now, have remained only abstract and esoteric questions for presidential and constitutional scholars.

Dick Cheney himself figured out the first problem in the 25th Amendment itself: There is literally no mechanism for removing an incapacitated vice president from the line of succession. As Cheney—whose heart problems were well-documented—took office in 2001, he kept thinking about Woodrow Wilson, whose stroke had left him incapacitated for the final year and a half of his presidency and left his wife secretly managing the nation’s affairs. “I knew how important it was to ensure we had a plan in place for leadership succession and survival,” Cheney wrote later. “We had a duty to make sure an enemy attack could not result in decapitation of our government.”

For the Cheneys in the vice presidential mansion at the Naval Observatory, a vice presidential vacancy wasn’t too much of a thought exercise: One of Lynne Cheney’s novels, The Body Politic, published in 1988, had focused on the death of a vice president that the White House chose to cover up on the eve of critical primaries—setting up a Weekend at Bernie’s-style satire that followed the staff trying to ensure that no one noticed the vice president’s death.

To ensure that his own health problems wouldn’t leave the nation without an able vice president, Dick Cheney wrote a secret letter of resignation, dated March 28, 2001, and addressed it to the secretary of state—not unlike the letters that Eisenhower, Kennedy and Johnson had penned before the existence of the 25th Amendment. Sitting in his office two months after his inauguration, Cheney attached a cover letter to his resignation addressed to his legal counsel, “Dave Addington—you are to present the attached document to President George W. Bush if the need ever arises. — Richard B. Cheney.” He handed the letters to Addington with a cautionary speech: “I won’t give specific instructions about when this letter should be triggered, but you need to understand something. This is not your decision to make. This is not Lynne’s decision to make. The only thing you are to do, if I become incapacitated, is get this letter out and give it to the president. It’s his decision, and his alone, whether he delivers it to the secretary of state.”

Addington slipped the resignation letter inside two manila envelopes, and hid it in a dresser drawer at his home—where it would be safe, even from a crisis that destroyed the White House. Cheney told Bush what he’d done and that Addington had the letter, if the need ever arose. Other than that, their plan remained secret throughout the presidency.

There’s still no more formal mechanism for an incapacitated vice president. Did Joe Biden write a similar letter as Barack Obama’s vice president? Has Mike Pence filed away such a letter? If he hasn’t, and Pence is incapacitated, the U.S. would be stuck without a functioning vice president until January 20, 2021 (and perhaps beyond, if Trump wins reelection). That would mean that there would be no one ready to step in if something happened to the president—the presidency would pass to Mike Pence, even if he were comatose and unable to fulfill the duties of the presidency. Nor is it clear that the 25th Amendment’s clause whereby members of the Cabinet can sign a letter removing the president from office would pertain to a vice president since that very clause vests the letter’s authority in the vice president. If there’s no functioning vice president, there’s no one to trigger the letter from the Cabinet saying the president can’t function.

The second problem is with the statute, the Presidential Succession Act, that guides the line of succession beyond the vice presidency. It may not really be constitutional—and the nation may find the law tested in a moment of great crisis. There’s a clear and well-understood debate that the law dodges a vexing question: Are the speaker of the House and the Senate president pro tem considered “officers of the United States” for constitutional purposes and thus eligible to succeed to the presidency at all? No less an authority than the author of the Constitution himself, James Madison, argued that they were legislators, not constitutional officers, and thus ineligible to become president. Congress has worried particularly since 9/11 about how, in a divided government, a terror attack or assassination attempt could alter government. “You could shift the entire direction of this country with one or two bullets,” Rep. Brad Sherman (D-Calif.) explained during one hearing. “What an invitation to assassins. We could have replaced George W. Bush with Nancy Pelosi.” The process outlined in the law appears to be in conflict with other parts of the Constitution that hold that only executive branch officials are “officers” and that uncertainty could allow it to be disputed in court.

Legal scholar Akhil Amar told Congress during one post-9/11 hearing, “The current Presidential Succession Act, 3 U.S.C. Section 19, is in my view a disastrous statute, an accident waiting to happen. It should be repealed and replaced.”

Republican Senator John Cornyn raised the question of what would happen if a speaker of the House or Senate president pro tem ascended to the presidency—and then was challenged by the secretary of State, who argued that the legislators didn’t count as constitutional officers. “Believe it or not, the secretary actually has a rather strong case, in my view,” Cornyn said. “Who is the president? Whose orders should be followed by our armed forces, by our intelligence agencies, and by domestic law enforcement bureaus? If lawsuits are filed, will courts accept jurisdiction? How long will they take to rule? How will they rule? And how will their rulings be respected?”

Later, a special bipartisan “continuity of government” commission led jointly by the Brookings Institution and the American Enterprise Institute, concluded, there “are serious policy and constitutional objections to having congressional leaders in the line of succession.”

The United States semiroutinely deals with moments when the vice president officially assumes—without taking any meaningful action—the presidency. In 2002, Vice President Cheney officially assumed the powers of the presidency when George W. Bush was sedated for a colonoscopy, and did so again in 2007. Officially, Cheney was in charge from 7:09 a.m. to 9:24 a.m. on June 29, 2002, and from 7:16 a.m. to 9:21 a.m. on July 21, 2007. And this summer, a new book by New York Times journalist Michael Schmidt reported that Pence was told to be ready to assume the powers of the presidency after a still unexplained urgent weekend trip by Trump to Walter Reed Hospital in November 2019.

But if the vice president’s not there—either for a routine matter or an urgent crisis—we don’t have any rule book ready.

For now, the nation waits.

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