At the beginning of the summer, the White House Military Office sent a memo to several dozen national security stakeholders with Top Secret clearances and a need-to-know designation. A new set of contingency instructions had been developed – significantly revised, really – for preserving the continuity of the presidency if the President or the Vice President, or both, were incapacitated by COVID-19.
With Donald Trump battling the COVID-19 virus, these plans to deal with a COVID cluster have gone from theory to practice. People familiar with them would only share the broad strokes, but they include new protocols for separating key staff into cadres. And for presidential travel, they dictate that the Commander-in-Chief has access to a diagnostic laboratory 24/7. It augments the corps of physicians and nurses in the White House Medical Unit with a “contingency cadre” of military medical professionals who would be on standby, able to take over if the Medical Unit itself was hit by an outbreak, or if a presidential successor were to need a full team. A negative pressure COVID-19 suite was explicitly retrofitted for the President’s use at Walter Reed National Military Medical Center in Bethesda, where the President flew today. And there were revised instructions given to the entire “EA Team”[Emergency Action] that supports the military aide to the President about what to do in case the President is involuntarily incapacitated. If a President’s judgment is impaired by illness and he were to issue an order to the officer who carries the President’s emergency satchel – the famed nuclear “football” – there is now a checklist of sorts that the officer can consult before carrying out the order.
What these new COVID-19 orders don’t do – what they can’t do – is decide what constitutes incapacity or impairment. The hard questions that need to be answered today – right this minute with the president hospitalized– are left undiscussed even as medical contingencies are specified in detail.
The onus in law is mostly on the Vice President.
The 25th Amendment outlines the chain of presidential succession. It gives procedures for the cabinet and the Vice President to declare a President unable to fulfill his duties. But it does not define these terms. The ambiguity is deliberate. A series of strokes in 1957 left President Dwight Eisenhower virtually unable to function for days at a time. Eisenhower presciently asked Congress to determine who would be in charge were the President involuntarily removed from office, even temporarily. Ike also asked Congress to make transient delegations of authority legal so that the military, in particular, had a clear view of the chain of command. The authors of the 25th Amendment, which grew out of Ike’s concerns, believed that they couldn’t make explicit categories about presidential fitness and that the Vice President should be in charge of drawing the line.
Section 4 of the 25th Amendment begins by ensuring that the Vice President is the affirmative and necessary vote: “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit…. 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.”
There are many assumptions packed into that paragraph, almost none of which have ever been tested. Suppose Congress sets “by law” a select body designed to determine whether the President is incapacitated. In that case, the Vice President has the veto over the body’s existence and terms of reference.
To be clear: if both the President and Vice President are not capable of serving, the Presidential Succession Act of 1947 kicks in, and the Speaker of the House takes over. But exactly who would determine that – so long as the two were alive – is not clear.
What happens if the Vice President were not available to answer? What happens if he, too, were incapacitated? There is no provision for Congress to select a new Vice President if the current one can’t perform his duties.
Precedent says nothing. Despite some much-mocked reports in the 1990s of secret plans for an unelected group of elders to take over, nothing like that exists. In cases where presidents and their successors get sick at the same time – a situation we may yet see – continuity stops.
It stops, too, if a vice president wants to risk offending his boss by temporarily declaring him incapacitated; it does not provide a norm for cases where, even in good health, the President is not a rational decision-maker. And as the election approaches, it’s worth noting that there is no emergency provision to coax each state to accept replacement candidates after voting has already begun.
The White House Medical Office’s secret plans, which are maintained by the obscure Presidential Contingency Programs Office, are mainly concerned with logistics, such as back-up electrical power in the event of a natural or human-caused disaster. But where the plans give programmatic guidance, they assume good faith among the staff. They assume that political pressure is not brought to bear; that the President’s medical condition will be disclosed to all relevant authorities which must include Congress.
These plans are analog; they are not designed to account for digital disorder. What happens if presidential successors act on false information that is fed to them online?
What if a Vice President campaigns instead of quarantines while the president is ill, something Mike Pence may well do?
The continuity plans do not include “ National Essential Functions” – the ungainly bureaucratic term for what the government must be able to do, such as ensuring the continued functioning of the three separate branches of government.
I hope President Trump takes these dysfunctions seriously if he’s reelected. I fear he won’t. If Joe Biden becomes President, his national security staff will hopefully plan for emergencies that once seemed implausible and that we might face very soon.