The “continuity of government” problem is an artifact of the nuclear age. What happens to the national command authority vested in the president—and what happens to nuclear deterrence—if a surprise attack decapitates the U.S. leadership? The fear of a first-strike targeting nuclear weapons against the president and others at the highest levels of the U.S. government led to many simulations and exercises, none of them very reassuring. This concern also spawned a number of emergency powers granted to the president, some highly classified, that were developed to cope with the absolute necessity of having someone recognized as president and commander-in-chief at all times.
The problem resurfaced after the September 11th attacks when it became known that the fourth plane seized by al Qaeda was headed to the Capitol and would have struck during morning business in the House, with many members in attendance or on the Capitol grounds. The result could have rendered Congress helpless until new elections replaced enough House members killed or disabled so that a quorum could be assembled. Until then, martial law would have had to supersede the legislative process. Following 9/11, the Commission on the Continuity of Government was created, of which I was a member.
This Commission also recognized the threat posed by a cyberattack, crippling our information networks. This is essentially a critical infrastructure problem of some complexity and it will take time for us to develop appropriate doctrines to ensure the continuity of government if internet communications are interdicted or their content is deceptively compromised.
In the next few weeks, it may be that an unusual continuity of government crisis will arise that I for one never dreamed of. The novelty of the problem arises from the possibility that disinformation would corrupt the accurate public perception of events and that the source of this disinformation might be the president. Thus a potential lapse in the continuity of the national command authority would arise from acts of the president himself and those around him.
First, what do we do if the presidential office—including the transition to a new administration—is disabled by a campaign of disinformation sowing widespread doubt as to who rightfully holds the national command authority? A number of developments—some carefully orchestrated such as the attempts to prevent the certification of electors and theatrical press conferences to showcase ever-escalating charges of criminal conspiracies—could result in the constitutional drop-dead date of January 20 leaving the country deeply divided as to the rightful occupant of the White House.
We are already witnessing legal and in some cases extralegal attempts to halt the counting of mail-in ballots, prevent the certification of electors and even efforts by the president to persuade Republican legislatures and governors to take steps to discredit or override the popular vote in their states. It seems likely that we will face a period of political and legal controversy that has already begun and could continue until and even after January 20.
The president’s stated unwillingness to commit to abide by the results of the election, and the attorney general’s claims of electoral fraud suggest that it is not unrealistic to be concerned that the electoral result on November 3 may not ultimately be acknowledged by January 20th. As of this writing, more than 50% of Republican voters believe that mail-in-ballots resulted in extensive voter fraud and that widespread ballot tampering occurred. And 70% do not believe the presidential election was “free and fair” despite ample evidence to the contrary.
It’s not the typical continuity of government problem in which everyone is suddenly killed, but rather a slow-motion, accelerating crisis that caused many to be uncertain as to whom to salute. The ensuing chaos, including claims of a “coup,” could readily dissolve into violence. Whether or not that happens, the prospect of military and other personnel who have been persuaded that the identity of the legal occupant of the presidency is in doubt, might well refuse to obey commands on the grounds that they are unlawful orders.
Second, there is this unprecedented element: the potential use by the president of certain emergency powers based on his professed belief that the election was irredeemably flawed.
Unlike many modern constitutions, the American Constitution does not have a specific emergency provision stating when an emergency may be declared and what the legal consequences are to doing so. To the extent that emergencies are contemplated, powers are given to Congress—for example, to suspend the writ of habeas corpus and to provide for the calling forth of the militia.
Post-Watergate concern about the accumulation of highly classified emergency documents led Congress to adopt the National Emergencies Act 1976. While that statute requires that a state of emergency expire after a year unless the president renews it, there are today some thirty states of emergency in effect, many declared in the aftermaths of natural disasters. Most have been repeatedly renewed. The president has access to emergency powers contained in more than 123 statutory provisions and while these trigger presidential powers their exercise is by no means limited to the triggering event. That is, powers may be invoked by the president that may be used in ways that have no clear relationship to the triggering emergency. For example, in March the president declared that the COVID-19 epidemic constituted a national emergency. In November it was reported that the president was considering a U.S. strike against Iranian nuclear stockpiles; were this in fact executed, the president might declare that a “threat of war” existed. In either case, emergency powers might be invoked in an attempt to halt temporarily the certification of presidential electors for the duration of the emergency.
Of course, these are highly unlikely scenarios. My point is we should understand and characterize the problem of disinformation as a powerful threat to the continuity of government even when it is wielded by a sitting president, frightened by the prospect of losing office into taking drastic steps that compromise that public’s esteem for that office.
Understanding the problem in this way will give confidence and resolution to civil servants, military and diplomatic personnel as well as underscore the risks raised by the president’s campaign of disinformation. It might even encourage elected officials on the sidelines now to step forward and say, “Enough.”
The period from now until December 14 is the period that most people are focusing on and rightly so. December 8 is the deadline for resolving election disputes and completing any state recounts and contests, and December 14 is the day the electors meet in each state to vote and execute their ballots. But the subsequent period from the 14th to January 20 may be even more fraught and the worst outcome would be confusion after the 20th.
The 9/11 Commission memorably concluded that “a failure of imagination” caused the intelligence community to miss the indications of a possible terrorist attack. We should be on our guard against such a similar failure today.
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