Politico

What Happens If Pence Needs to Become ‘Acting President’?


Dick Cheney won’t ever get a presidential library, but he is one of just two people in American history to formally hold the title of “acting president,” officially endowed with the full powers of the presidency for just over four hours across two instances when George W. Bush was sedated in 2002 and 2007 for routine medical procedures.

Many American have never realized that there was a formal mechanism to transfer the powers of the presidency, but now the concept of an “acting president,” a little-known mechanism of the Constitution laid out by the 25th Amendment, has taken on a new prominence amid the concerns about President Donald Trump’s Covid-19 diagnosis and hospitalization Friday at Walter Reed Hospital.

The history of the procedure is unique and short and under normal circumstances provides an important window into understanding the power and flexibility of the American presidency. The challenge, of course, is that the “acting president” procedures have been used previously by presidents confident in their own authority, leaders who had good, trusting relationships with their vice presidents and never in circumstances so fraught as now—with such proximity to a challenging reelection and where the cause of the president’s illness was itself a political liability.

The three times before that the “acting president” procedures have been used, they were put in place to emphasize a smooth and stable presidency. Today, they would highlight presidential weakness—coming as a sign that the president’s recklessness with the coronavirus pandemic has actually now literally left him unable to fulfill the duties of the presidency. Nor has the transfer of presidential of power ever happened in an exigent circumstance; it’s only come before planned medical procedures with coordination beginning days or even weeks ahead of time.

All this raises real questions about how “acting president” procedures would be implemented today, particularly if it appeared that Trump might for a longer period of time be unable to function as president. As with nearly everything involving the unique, norm-shattering and often ahistorical Trump administration, Trump’s sudden arrival at Walter Reed, the first presidential hospitalization since Ronald Reagan was shot in 1981, might still write a new chapter in the history of the presidency.


If Trump hands over power to Mike Pence for a period of time voluntarily, he’ll follow a by-the-book procedure that has usually been seen by previous White Houses as more a short-term technicality than any sign of long-term power shift. The longest term of an “acting president” has been just eight hours.

But Trump, who is famously sensitive to appearances and who even while he’s being treated for Covid-19 at the hospital, has been furiously working to keep up the impression that he’s OK, might be reluctant to cede authority to Pence, even if it becomes necessary. If Pence must seize power without Trump’s consent, that would put the country on brand new ground, setting off a series of complex Constitutional contingencies that could lead to questions about the precise definition of Trump’s Cabinet, the Constitutional relevance of Acting Homeland Security Secretary Chad Wolf and even whether Pence could participate in the upcoming Senate confirmation hearings of Supreme Court nominee Amy Coney Barrett. And, if Pence subsequently himself falls ill himself, the nation would quickly find itself in truly uncharted territory.

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Through most of the nation’s first two centuries, the country had simply dodged and outright ignored the question of a president’s long-term illness or incapacity; during a time when news traveled slowly and there was less time pressure on presidential decisions, the country and presidents made due with brief periods without a conscious president. Grover Cleveland underwent two surgeries for mouth cancer in the summer of 1893, hiding out aboard a yacht and telling not even the vice president that he would be unconscious during the procedures; during the final 18 months of Woodrow Wilson’s presidency, following a massive stroke, it seems that his wife Edith served as the nation’s top decision-maker amid a tense situation whereby his vice president was reluctant to appear to seize the power of the presidency absent clear instructions about how to do so.

It was only with the advent of nuclear weapons—when the speed of nuclear missiles made it necessary to have a president minute-by-minute and hour-by-hour—that Congress moved in 1965 to codify a procedure in the 25th Amendment for the temporary or permanent transfer of presidential authority following an illness or disability.

The procedure outlined for an “acting president” was first used overnight on Saturday, July 13, 1985, when Ronald Reagan transferred power to George H.W. Bush for roughly eight hours as he underwent colon surgery to remove a cancerous polyp in his large intestine and some two feet of his small intestine.

It wasn’t until Saturday, June 29, 2002, that a president next went under anesthesia: As medical staff and the president’s physician, Dr. Richard Tubb, that summer planned a colonoscopy for George W. Bush, the White House staff out of an abundance of caution decided to invoke the 25th Amendment. “This was not a panic situation,” recalls then-White House Chief of Staff Andrew H. Card, Jr. “There were people who felt we didn’t need to do, but we felt it was better to err on the side of doing it right.”

Tubb joked to reporters, in discussing the expected transfer of power during a press conference the day before, said that the move was in part to ensure the smoothest experience for the president: “I have had the procedure myself, both with sedation and without, and I will tell everybody here I recommend having it with sedation.”

The next morning as the procedure began, the White House staff secretary transmitted identical two-paragraph letters signed by President Bush to Speaker Dennis Hastert and the Senate president pro tem, Robert C. Byrd, reporting, “In accordance with the provisions of Section 3 of the Twenty-Fifth Amendment to the United States Constitution, this letter shall constitute my written declaration that I am unable to discharge the Constitutional powers and duties of the office of the President of the United States. Pursuant to Section 3, the Vice President shall discharge those powers and duties as Acting President until I transmit to you a written declaration that I am able to resume the discharge of those powers and duties.” Later, he sent a similarly brief note revoking the transfer of power.

Card, at the president’s side during the treatment at Camp David, carefully choreographed the transfers and resumption of power—working with the president’s staff secretary and White House counsel to ensure the transmittal of the letters to the House and Senate, informing the vice president by phone of each development, and ultimately—as the official witness—deciding when he felt the president had awoken sufficiently from anesthesia to resume the presidency.

While the White House had told the public the move was expected, the precise times on Saturday of the transfer of power weren’t announced for security reasons until the operation was complete and the president was back in control. “It was actually a little bit funny,” Card says, recalling how he stood next to the groggy president. “It was, ‘Talk to me—what day is it? Are you with it? Can you count to ten?’ I tried to not let emotions interfere. You want to be a calming presence to the president.” Once he was convinced the president was awake and fine, Card approved the resumption of Bush’s presidential powers, called the vice president and spoke to the White House staffers to transmit the second letter. All told, Cheney was “acting president” for 133 minutes, from 7:09 a.m. to 9:24 a.m.

Five years later, at a follow-up colonoscopy appointment, the procedure was repeated; Bush again transferred power for a similar length of time on July 21, 2007. Cheney ended up serving as “acting president” for 125 minutes, from 7:16 a.m. to 9:21 a.m.

In 2007, the White House stressed that the episode was so routine that Cheney went about his normal morning; he was at his house on Maryland’s eastern shore, playing with his dogs, and at the time the White House stressed that he took no presidential action at all. “To the surprise of Cheney haters everywhere, he didn’t seize the opportunity to start a war, pardon Scooter Libby, or ship Carl Levin to Gitmo for questioning,” the Weekly Standard teased.

However, as the Standard’s Stephen Hayes later uncovered, the move obviously did have a more serious impact on Cheney than was originally known. That morning, he sat down and wrote a single letter, addressed to his five grandchildren—the only known document in American history to have been signed by an “acting president”—in which he invoked the war on terror and wrote, “you will come to understand the sacrifices that each generation makes to preserve freedom and democracy for future generations.”

Due to their planned nature and brevity, the transfers of power during Bush’s tenure were treated as routine; while Cheney technically could have exercised any presidential power he wanted during the time, there were few special procedures or plans put into place during switch. “It’s more of a technicality. If someone goes to nuclear war, the vice president would be in charge, but that’s about it,” one former White House security official told me. “Everyone stands by in case the president never wakes up—then you have a whole other story.”

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Reagan and George W. Bush both used what are known as “Section 3” transfers, referring to the portion of the 25th Amendment that allows for the voluntary and planned transfers of presidential power by that simple letter to congressional leaders.

While the precise guidelines and procedures that would be used by the Trump White House to temporarily transfer power to Mike Pence are unknown, two scholars at Fordham Law School, John Rogan and Roy E. Brownell II, were able in recent years to access and publish a copy of the special 208-page binder prepared for the Clinton White House on “Contingency Plans — Death or Disability of the President,” and legally today’s procedures would be all but identical.

“If possible, the letters should be typed on Presidential stationery. If circumstances demand, however, the letters may be handwritten on any type of paper,” the Clinton binder says. “The letters should be signed personally by the President if possible, but a reliable manifestation of his understanding and assent would suffice.” Under such circumstances, the transfer of power takes place legally at the moment the letters are sent or placed in the hands of a White House messenger—and no new oath is necessary for the vice president—and the receipt of the letters by the congressional leaders is actually a mere formality.

Presumably, if Trump’s condition worsens in the coming days or he receives a medical procedure that requires anesthesia for a limited period of time, he would use this planned “Section 3” transfer and follow the models of Bush and Reagan, sending letters to Nancy Pelosi and Chuck Grassley announcing the transfer of power and making Pence temporarily “acting president.” The routines established by previous administrations would work easily, and given the comity between Trump and Pence, there would be likely little noticeable impact on the U.S. government even if such a transfer of power lasted for a few days.

Most recently, according to a new book by New York Times journalist Michael Schmidt, Vice President Mike 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, implying that doctors expected the president might require anesthesia during some part of his treatment. (Pence, for his part, refused to confirm that notification, saying he “can’t recall” being told to be on standby to become “acting president.”)

The White House so far has gone out of its way to say that no planning is underway to transfer authority to Pence; the president and his family have repeatedly tweeted and posted videos about how hard Trump is working while at Walter Reed. It’s hard to imagine Trump willingly ceding power in all but the most dire circumstances.

Where the 25th Amendment gets more interesting—and complicated and fraught—is if Trump’s condition worsens unexpectedly and there’s no time to transfer power voluntarily or, for whatever reason, the norm-shattering president is reluctant to turn over authority and Pence feels it necessary to seize power.

For that, there’s “Section 4.”

A so-called “Section 4” involuntary transfer of presidential power is necessary if the president is incapacitated and unable to cede control or, in more extreme scenarios, unwilling. Under that procedure, the vice president and a majority of the Cabinet leaders can sign or agree to a declaration that the president is unable to discharge his duties, after which the vice president immediately assumes the role of “acting president.”

Notably, there’s some ambiguity under the wording whether the “majority” is determined by the formal Cabinet, the heads of government departments, or includes those with “Cabinet rank,” which in recent administrations have included people like the UN ambassador and the director of national intelligence, so the Clinton procedures called for the vice president to assemble a majority of officials with Cabinet rank to avoid any challenges to the transfer of power’s legitimacy. Trump has given Cabinet rank to seven officials beyond the government departments, including the U.S. trade representative, White House chief of staff, CIA director, and the head of the EPA, so following the Clinton procedures would require an additional four “votes” of those officials to declare the president incapable of fulfilling his duties. Beyond the mere question of Cabinet rank, Trump’s personal proclivities for his administration’s personnel will inject another legal question: Fordham’s John Rogan has written that it’s not clear how Trump’s preference for “acting” Cabinet secretaries would affect the total number of votes to declare him unfit for office—whether they could vote at all or whether their departments would count toward the total number of votes needed. Would Homeland Security Acting Secretary Chad Wolf, one of Trump’s most loyal Cabinet voices, get a vote in declaring him unfit for office?

Once assuming the role of “acting president” under Section 4, the vice president then remains in charge until the president sends another letter to the congressional leadership saying that he or she is able to resume office. But the lengthy passage of Section 4 outlines a nearly 200-word timeline and procedure whereby the vice president and Cabinet can challenge the president’s fitness for office and allow Congress to decide, with a two-thirds vote of both the House and Senate that the president remains unable to serve as president and thus allow the vice president to stay as acting president.

“A Section 3 transfer of authority is much preferable to a Section 4 transfer,” the Clinton era binder explains, as well as “less legally ambiguous.” Part of what makes Section 4 transfers problematic operationally—particularly in modern times, with the speed of news, technology and global decision-making—is that Section 4 gives the vice president and Cabinet four days to challenge the resumption of the president’s powers, and it’s unclear when a president’s powers kick back in—immediately upon sending a letter declaring himself fit for office again or only after the expiration of the four-day challenge period? White House lawyers have previously argued they believe that the “acting president” would only wrap up after the four-day waiting period, though they’ve recommended that a public statement from the vice president and Cabinet saying they won’t challenge the president’s use of his powers during that time frame might help alleviate concern or instability.

This could mean, in the current situation the White House faces, that if Trump’s condition worsens unexpectedly, Pence finds himself “acting president” for at least four days, even if Trump regains consciousness quickly. How the president and vice president would navigate such a dynamic is anyone’s guess—and there’s no clear legal remedy to speed up the transfer of powers back.

Taking the president’s powers involuntarily in conditions other than an obvious medical emergency where Trump is unconscious would surely prove one of the most fraught political moments of American history; while rumors have long circulated that various Cabinet officials have at times debated activating the 25th Amendment to declare Trump unfit for office, the mere suggestion that such conversations took place has proved politically radioactive. Deputy Attorney General Rod Rosenstein came close to being fired after public reports he’d discussed trying to remove Trump from office. Any attempt to invoke “Section 4” would presumably only happen if there was a critical and obvious need for such a transfer of presidential power. The famously vindicative and explosively-tempered Trump (not to mention his most devoted MAGA supporters) would presumably not look kindly on any effort to remove his presidential authorities without his OK—and the incumbent Republican presidential ticket can hardly risk a White House power struggle weeks before an election where its handling (and mishandling) of the Covid-19 pandemic is a key election issue. That Pence and Secretary of State Mike Pompeo both are likely to vie for the 2024 Republican presidential nomination only adds to the potential political risk of any such calculus.

An additional wrinkle that could come into play amid the ongoing Supreme Court confirmation fight is that while serving as “acting president,” the vice president would no longer serve as president of the Senate—meaning that Pence, if he ends up taking over for any extended period of time, would not be able to cast a tie-breaking vote for Amy Coney Barrett, thus narrowing the GOP Senate’s path to a successful confirmation, particularly given the recent Covid-19 diagnoses of three GOP senators.

Under the more extreme Doomsday scenarios that envision the death of both the president and vice president, the presidential line of succession would then go to the speaker of the House (although, it’s not entirely clear that line of succession is legal), the Senate president pro tem, and then Cabinet department heads in descending order of their department’s founding.

In such a moment, the speaker of the House, Senate president pro tem, or Cabinet official would take a special oath—not the presidential oath—and become the “acting president” for the remainder of the presidential term. For the House speaker and Senate president pro tem, taking that oath is seen legally as a simultaneous resignation as House speaker and member of Congress, a prerequisite to assuming office in the executive branch.

There’s an additional and uncertain wrinkle in the presidential succession process, though, known as the “supplantation clause,” which legal and constitutional scholars believe means that a Cabinet official’s ascension to being “acting president” might be quite short-lived. It appears that a “prior-entitled” presidential successor could take over as soon as that office was filled, e.g., that if the secretary of state or other Cabinet secretary was serving as “acting president” because there was no House speaker or Senate president pro tem—for instance, they had both been killed in the same incident as the president and vice president—that as soon as the House or Senate elected a new leader, that person would actually take precedence and assume the mantle of “acting president.” Depending on if the Senate reconstitutes itself first and the Senate president pro tem takes over as “acting president” from the highest-ranking surviving Cabinet secretary, it seems entirely possible that the “acting presidency” might change hands multiple times in a brief window during the height of a major catastrophe or crisis.

Moreover—and more concerning for, say, a pandemic and disease that is tearing through the ranks of senior White House officials—where the 25th Amendment and the procedures for an “acting president” begin to fall apart is when the vice presidency is affected by death or disability at the same time as the president is incapacitated or dead. Under such circumstances, the Clinton binder warns, “No guidance can be given with any legal certainty.”

A legal memo from the Carter administration, authored by future U.S. Senator Robert Torricelli, then an aide to Vice President Walter Mondale, concluded, “The Twenty-Fifth Amendment seems to have created almost as many questions ·as it has answered. The timing of modern events will not allow for the uncertainty that arises from a long process of legal interpretation.”

If anything happens to Mike Pence and the U.S. finds itself with “Acting President Pelosi,” “Acting President Grassley,” or “Acting President Pompeo,” then there’s no contingency binder waiting at all and there will be almost certain court fights as various officials and branches of government fight for control of the White House through January 20, 2021 or even beyond.

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