#6: Secrets of success(ion)

commit #25: [bugfix] Patches hole in presidential succession logic

October 4, 2020 • Day 206

Hi everyone. Man, it has been a week, hasn’t it? The image above has nothing to do with anything but just seemed like the kind of unicorn chaser we all need.

At home, things have been pretty quiet. I got some work stuff done, my daughter had another great week of virtual school, we built some Harry Potter Legos, I grilled a lot.

Meanwhile, as you surely know, the sitting president of the world’s most powerful nation — a 74-year-old obese man who likes well-done steak and taco bowls from the Trump Grill — has been hospitalized with Covid-19. And you’ve probably spent your weekend either refreshing Twitter to see what fresh hell awaits us all or tried very hard to not do that. I was in the first camp, but if you chose not to give over your weekend to the latest way Donald Trump has failed to manage Covid, I respect your choice.

The president being in the hospital — with a disease whose case fatality rate among older patients is as high as 1 in 5 — prompts all sorts of questions, the most pressing being:

  • Who exactly is in charge right now?

  • What happens if the president is incapacitated, or dies, while in office?

The great thing about our founding document, the U.S. Constitution, is that it is so minimalistic and vague that it answers neither of those questions clearly.

I wrote and rewrote this week’s newsletter at least three times, deciding how or if to even get into this. Rather than reflect on What It Means or What Might Happen, I’ll just share some things I learned this weekend on the subject of presidential succession, about which my wife will tell you — because I unwisely deep-dove into the details of the Presidential Succession Act on our second date — I am a gigantic nerd.

One: Eight presidents have died in office.

Four were assassinated: Lincoln, Garfield, McKinley, and Kennedy. The Lincoln and Kennedy assassinations everyone knows about; Garfield and McKinley are the trivia-night deep cuts. He was murdered roughly nine months into his term by Charles Guiteau, who delusionally believed he was owed (and denied) a sinecure-type job by Garfield and shot him as revenge. (BTW, Candice Millard’s book Destiny of the Republic, about the Garfield assassination, is excellent.)

The others died of natural causes: Harrison (pneumonia), Taylor (cholera), Harding (heart attack), and most recently FDR (stroke).

Two: The shortest-serving president was…

I admit it, I looked this up because I was wondering if any scenarios that might end with a Pence Administration would break any records for shortest-ever presidency.

Turns out that William Henry Harrison died of pneumonia exactly one month after his inauguration; to beat that record, Pence would have to succeed Trump sometime after December 21, 2020, having lost the election to Biden & Harris.

The next-shortest was the aforementioned James Garfield (6 months).

Three: The Constitution was ambiguous about ‘acting’ vs true presidential succession for nearly 200 years, but then we fixed it

The Twenty-fifth Amendment, ratified in 1965, is notorious as one of only two legal ways (alongside impeachment) to forcibly remove a U.S. president from power. But it turns out that was just one of four changes to the presidency codified in that amendment, which fixed some longstanding bugs in presidential succession following the assassination of President Kennedy.

William Henry Harrison was not only the shortest-tenured president but also the first to die in office, which created our first constitutional succession crisis. The Constitution says:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President

The way this is written, it strongly suggests that the powers and duties of the presidency shall fall to the vice president, but not the office itself. This is why, when Harrison died, his V.P. John Tyler was considered by some to be merely the acting president, serving as a caretaker until the next election.

Tyler said that was bullshit — he wasn’t acting as president, he was the current, legal president. Congress eventually passed resolutions (not laws) agreeing with Tyler, and the “Tyler precedent” governed what happens when a president dies until 1965.

Section 1 of the Twenty-fifth Amendment codified this precedent into constitutional language: when a president dies, resigns, or is removed from office following impeachment, the vice president legally and unambiguously becomes president.

Four: If a president is stripped of their power under the 25th, they remain in office until the end of their term

Section 4 of the Twenty-fifth Amendment is the unfired Chekhov’s Gun of American constitutional provisions. Under it, the vice president and a majority of the Cabinet can forcibly take power from a sitting president by drafting a letter to Congress declaring the president unfit to serve. It’s less than 60 years old and has, of course, never been used in real life, though it has been a plot point in TV shows like season 2 of 24.

Now, here’s a wild thing I didn’t know:

A president thus declared unable to serve may subsequently issue a declaration stating that he is able. This marks the beginning of a four-day period during which the vice president remains acting president. If by the end of this period the vice president and a majority of the "principal officers of the executive departments" have not issued a second declaration of the president's incapacity, then the president resumes his powers and duties.

If a second declaration of incapacity is issued within the four-day period, then the vice president remains acting president while Congress considers the matter. If within 21 days the Senate and the House determine, each by a two-thirds vote, that the president is incapacitated, then the vice president continues as acting president; otherwise the president resumes his powers and duties.

In addition to the oddly specific four-day grace period, I was surprised to learn that in the event Congress does intervene and uphold the invocation of the Twenty-fifth, the vice president explicitly remains just an acting president, while the president remains in office but without any “duties and powers.”

This, I presume, is so the president can come back at some point, whenever their incapacity has been resolved. But the edge cases could get pretty bizarre: what if the president were incapacitated and on life support indefinitely, but didn’t die? What happens if everyone agrees a president suffering from a long-term illness should step back, but they refuse to resign and/or keep trying to reclaim power under the Twenty-fifth? 🤷🏻‍♂️🍿

Five: We used to go without vice presidents for years at a time

Then-Vice President Al Gore, speaking outside the official vice presidential residence, One Observatory Circle, in November 2000.

Another bug fixed by the Twenty-fifth: until 1965 there was no way to replace a vice president, so anytime one died, resigned, or acceded to the presidency, the office of vice president would just stay vacant until the next election.

LBJ did not have a vice president for almost 14 months until he and Hubert Humphrey won the 1964 election. Truman served without a VP for almost an entire term, after he succeeded FDR just over a month after the inauguration.

Section 2 of the Twenty-fifth Amendment gives the president a way to replace the vice president, by nominating someone for confirmation by the Senate. The first (and so far only) president to take advantage of this power was Nixon; VP Spiro Agnew resigned in December 1973, and two weeks later was replaced by Gerald Ford. Ford then unexpectedly became the beneficiary of another part of the Twenty-fifth, when Nixon resigned and Ford became the 38th President of the United States — and one of his first official acts, after pardoning Nixon, was to select and nominate a new VP.

Vice President Joe Biden with Vice President-elect Mike Pence, shortly after the 2016 election

This weekend, I’ve been bizarrely comforted by news that the White House has activated its “continuity of government” plan, reaching out to all the officials on the legal order of succession (including Nancy Pelosi, who’s next in line after Pence) to confirm clean Covid tests and readiness to step in if called upon.

It’s comforting because, after four years of Trump stomping on the law like a drunken orange T. rex, it’s a sign that some of our institutions remain up and running. If this were already a true dictatorship, we’d be hearing that Jared, or Ivanka, or Mark Meadows was standing by to take power, or at least working to find some angle to block Pelosi from her legal place in succession. But in this, at least, the White House is playing by the rules, perhaps because the rule-breaker-in-chief is in the hospital with Covid.

Even as Trump has ranted and raved and threatened to disrupt democracy over “the ballots,” and now as his supporters insist that the election must be postponed because Trump can’t campaign, it’s still true that the election is 30 days from today, and cannot be moved.

Listening: I’m not here, this isn’t happening

Want to feel young (or else, just as old as I do)? I bought Radiohead’s Kid A on CD at a Borders Books & Music in Chicago the day it came out, October 1, 2000. Borders isn’t a thing anymore, and CDs… well, I’m sure they’re around, but I haven’t owned (or seen?!) a CD player in years. But I still have that CD copy of Kid A in a binder in my attic.

Stereogum’s retrospective on the album’s release and legacy brought back memories of just what a big fucking deal this album was at launch, and how unusual its rollout was, relying on bits of video and early-stage internet media (AOL/AIM chats!) over big singles and music videos. And, of course, the album still slaps. Chris DeVille writes:

In the skronking, discordant chaos of “The National Anthem” I hear the disorienting noise of life online under rising nationalism and authoritarianism, an endless barrage of push notifications and social media posts about a world that only seems to get darker and scarier. Public attitudes about this planet’s declining health are only just now catching up to the frantic urgency of “Idioteque” and the bleak cynicism of “Optimistic.” Who among us has not at some point in recent years tried to assert some kind of control by putting “everything in its right place” or felt compelled to curl up in a ball and declare, “I’m not here, this isn’t happening”?

Put another way: though other records may be more iconic, anchoring them to a time and place — “Creep” and OK Computer make them irreversibly a 90s band; Hail to the Thief is a good reminder of all the Bush-era stuff we try to forget — but Kid A is the most Radiohead Radiohead album.

TIL rock critic Steven Hyden has a new book out about the album, titled This Isn’t Happening: Radiohead’s Kid A and the Beginning of the 21st Century, now downloading to my Kindle.

Drinking: I fly like paper, get high like planes

Good news, everyone! I feel well enough to drink again! So let’s talk about the Paper Plane.

I first had this cocktail last year in the United Polaris Lounge at Newark Airport, on my way to Australia. (Get it? Plane???) But it turns out that the Paper Plane originated at the cocktail bar where I first discovered I loved cocktail bars, Chicago’s The Violet Hour, and even dates back to the time when I was super into The Violet Hour (specifically) but hadn’t yet traveled enough or done enough of the reading to understand that drinks had provenance and lineage.

To wit: this drink started in Chicago, at The Violet Hour, but was invented by Sasha Petraske & Sam Ross from NYC’s Milk and Honey, where Violet Hour founder Toby Maloney had worked. It’s also named after the M.I.A. song “Paper Planes” which was popular around that time. So, you know, lots of provenance there.

The drink itself is a riff on a classic, the Last Word; because it’s shaken with citrus, the Cocktail Codex categorizes it as a kind of flip. One of the things I like about it is that it’s a very simple recipe, consisting of 4 equal parts (0.75 oz or 30 cl) bourbon, amaro, bitter aperitivo, and lemon juice. Also, because the majority of the drink is either low ABV or non-alcoholic—it has way less hard spirit than a lot of cocktails I drink—it’s a bit easier to handle.

  • 0.75 oz bourbon (Bulleit)

  • 0.75 oz Amaro Nonino or similar (I used Bigallet China-China)

  • 0.75 oz Aperol or St. George Bruto Americano

  • 0.75 oz lemon juice

Because of the citrus, this drink should be shaken with ice.

On my first attempt, I followed the recipe on St George Spirits’ website, including serving it up in a chilled Nick and Nora glass. I also realized that one reason I’ve been finding my drinks a bit much lately could have been that I was using a 120 proof(!) Knob Creek single barrel reserve bourbon; the drink was great but boozier and sharper than anticipated.

For the second go, I went with plain old Bulleit bourbon (at a far more reasonable 90 proof), and served it in a rocks glass with a giant ice cube, like a Margarita. The lower-proof bourbon and dilution from the extra ice were nice touches; this is the way I recommend making this drink.

That said, it has a real kick, from either/both of the Bruto and lemon juice. A lot of other citrusy cocktails, including the Margarita, whiskey sours, and most tiki drinks, balance out the tartness with some sweetness (like simple syrup). The Paper Planes I made this week seemed just a little too sharp, and since lemons are lemons I wonder if Bruto is just too intense compared to the Aperol in the original recipe.

Then again, a sharp drink is what this week calls for. And if things continue as they have, we’re gonna need a steady supply of strong, sharp drinks to get through the year.

Hang in there, everyone,
—DD