The 14th Colony: A Novel (33 page)

But what about others succeeding to the presidency when there is no vice president available?

It is the 20th Amendment that deals with this contingency. That amendment also addresses issues of succession that occur
before
a president and vice president are sworn into office.

Here is the relevant language:

The terms of the President and Vice President shall end at noon on the 20th day of January. If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice-President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice-President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice-President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

First, it is clear from this constitutional amendment that the term of a president ends precisely at noon on January 20 so, by implication, the term of the next president would begin simultaneously. Second, if the president-elect dies before the term begins, the vice-president-elect becomes president on January 20 and serves the full term to which the president-elect had been elected. Third, if on January 20 a president has not been chosen, or the president-elect does not qualify for the office, the vice-president-elect acts as president until a president is chosen or the president-elect qualifies. Finally, Congress can provide by law for cases in which neither a president-elect nor a vice-president-elect is eligible or available to serve.

This last contingency was expounded on by Congress in the 1947 Presidential Succession Act, which lays out the line of succession in cases where there is no president or vice president, either before or after being sworn in. First in line comes the Speaker of the House of Representatives, then the president pro tempore of the Senate. After are various cabinet officers in a set order beginning with the secretary of state, then treasury, defense, the attorney general, and on down ending with the secretary of veterans affairs being the 16th in the line of succession.

To be eligible to succeed the cabinet officer must meet the constitutional requirements of being president and must have been appointed by and with the advice and consent of the Senate. Having taken the oath, the statute provides that the officer is automatically removed from his or her cabinet post, becoming president for the remaining term or until a person higher in the line of succession is available to serve. This law has never been called into action, but unanswered legal questions exist as to its constitutionality.

First, consider the exact language of the statute itself. Section (a)(1) provides:

If by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

Initially it has to be asked, can a member of Congress even be placed in the line of succession? Article II, Section 1, Clause 6 of the Constitution specifies that only an “officer” of the United States can be designated as a presidential successor. Nearly every legal scholar who has considered this issue, including one of the American founders, James Madison, has concluded that such a term excludes members of Congress. This is buttressed by Article I, Section 6, Clause 2 (the Incompatibility Clause), which states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Under the American constitutional system, the two branches of government, legislative and executive, must remain separate. The 1947 Succession Act deals with this prohibition by requiring that the Speaker of the House and/or the president pro tempore of the Senate first resign their congressional post prior to being sworn in as president. But how could either then be eligible to be president since, once resigned, they would no longer be Speaker or president pro tempore, hence ineligible to succeed under the statute.

When a cabinet officer succeeds under the statute there is language in subsection (d)(3) of the act that specifically provides:

The taking of the oath of office by a [cabinet officer] shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

No such proviso appears in the subsection of the law that provides for succession by the Speaker of the House or the president pro tempore of the Senate.

More legal questions also exist with a member of the cabinet being placed in the line of succession. The 1947 Act expressly states that any cabinet officer who succeeds serves as “Acting-President” until a new Speaker of the House or new president pro tempore of the Senate is chosen, who would then replace that cabinet officer as acting president. Scholars call this “bumping,” but this statutory language conflicts with Article II, Section 1, Clause 6 of the Constitution, which says that when an officer of the United States succeeds to the presidency “such Officer shall act accordingly until the disability [of the president] be removed or a President shall be elected.”

Experts agree that there is no constitutional sanction for the bumping of one officer for another, which makes sense, as the prohibition prevents the confusion that would surely arise if the American presidency were transferred to several different people in such a short period of time. It would also prevent Congress from exercising influence over the executive branch (violating the separation of powers) by threatening to replace a cabinet member acting as president with a newly elected Speaker of the House.

In short, the Presidential Succession Act of 1947 is a flawed statute. One observer calls it “an accident waiting to happen.” If its statutory provisions were ever applied it would generate nothing but litigation. In the appendix attached hereto is a long list of law review and other scholarly articles (from 1947 to the present) that have come to the same conclusion. Yet the United States Congress has made no attempt to repair its deficiencies.

So consider this: If a president dies in office, clearly, under the 25th Amendment, the vice president becomes president and serves out the remaining term. If a vice president dies in office, under the same amendment the president and the Congress choose a replacement, who serves out the remaining term. If the president-elect dies before taking the oath, the 20th Amendment provides that the vice-president-elect becomes president.

But what happens when both the president-elect and the vice-president-elect die before noon on January 20?

The 20th Amendment fails to address this possibility. Instead, the amendment empowered Congress to provide an answer, which became the Presidential Succession Act of 1947. But that act would not solve anything relative to this catastrophic scenario. Instead, under the statute as it is presently drafted, the United States would be plunged into political and legal chaos.

Stephanie finished her second reading of the memorandum.

Another sheet in the file noted that the document had been intercepted on April 9, 1982, part of a cache seized from a Soviet spy captured in West Germany. Its author was unknown. But the KGB had certainly gone to a lot of trouble to learn about the Presidential Succession Act of 1947, a relatively obscure aspect of American law.

She was ensconced on the White House’s third floor, inside a modest bedroom with two queen-sized beds, a lamp burning on a mahogany table between them. Danny was one floor below in the master suite. She’d tried to sleep but had been unable, deciding to read the memo once more. She considered herself well versed in the Constitution, and was aware of some of the 20th Amendment’s shortcomings. But the flaws in the 1947 Succession Act surprised her, as did Congress’s seeming indifference at changing them.

Although she could understand that hesitation.

What were the odds of the act ever coming into play?

Only in two instances was the American government ever congregated in a single location. One was the yearly State of the Union address, which happened each January in the House of Representatives chamber on Capitol Hill. The other was a presidential inauguration. Every major player was present for both events.

Except one.

The designated survivor.

Usually a member of the cabinet, chosen in secret by the White House chief of staff before the event and hidden away in a remote and undisclosed location with both presidential-level security and transport. An aide even carried a nuclear “football” that could be used by the survivor to authorize any counterattack. In the event of a total catastrophe that person, in direct line to succeed thanks to the 1947 Succession Act, would become acting president. All of these plans assumed, though, no political or constitutional problems associated with such an ascension.

Yet that might not be the case.

In fact, the whole idea of the 1947 Succession Act now seemed suspect.

But what did this have to do with Aleksandr Zorin and missing Russian nukes? Was Zorin aware of this information and now planning an attack on the inauguration? That seemed the logical conclusion, given what Cotton had reported about Zorin and the zero amendment. Certainly on Monday the entire government, save for the designated survivor, would be present on the west side of the Capitol, there to watch the beginning of the Warner Fox administration.

But what would be gained by such a reckless act?
“His name is Aleksandr Zorin and he wants revenge.”
That’s what Osin had told her.

Then there was what else Cotton had been told.

Fool’s Mate.

Danny had said he was waiting on Osin to provide more on that, too.

But she knew a quicker way that information might be found.

CHAPTER FORTY-NINE

Zorin stared across the water at Eastport, Maine. He and Kelly had sailed from the Canadian side of the bay in just under two hours. Finally, they’d lowered the sail and dropped anchor about half a kilometer offshore. The cabin belowdecks came with two bunks, some spare equipment, and life jackets. They huddled inside, with the curtains drawn on the portholes. Peering past them he saw a dock and marina that accommodated a variety of boats. Eastport seemed like a quaint little town, its claim to fame being its status as the easternmost city in the United States, as Kelly had explained.

“This is a formal port of entry,” Kelly said. “A ferry sails from here to Deer Island in New Brunswick, but only in the summer. This time of year entry in and out is informal.”

“We cannot be detained.”

“We won’t. I’ve tested this path before. What were we taught, Aleksandr? Be ready or die.”

He climbed topside to the small aft deck and listened to the distant hiss of small breakers as they splashed against a rocky shore. Out here on the water, with nothing to block the wind, the north air knifed through him. Like another cold day, long ago on the Kamchatka Peninsula, when six opium-addicted soldiers seized a Tu-134 destined for the Siberian oil fields. Two of the 74 passengers were killed and the airplane damaged, which temporarily prevented it from being flown to the West, which was where the soldiers wanted to go. He’d sat offshore that day, about half a kilometer, waiting for an opportunity, another stiff Arctic wind chilling his bones. Eventually, he and three others from his
spetsnaz
unit slipped ashore and stormed the plane, killing all six of the hijackers.

He’d been good at his job.

Respected.

Feared.

And rewarded.

Unmarked buses had crisscrossed Moscow every day providing free rides for KGB employees. No shortages ever affected him or any other intelligence officer. KGB grocery stores stayed stocked with salmon, sausage, cheese, bread, even caviar. Western clothing was readily available. There were gyms, saunas, pools, and tennis courts. A private medical staff worked around the clock. A modern clinic employed dentists. Even masseuses could be hired. The headquarters of the First Directorate, just outside Moscow, came with better security than the Kremlin. And what a place. Its construction materials had been imported from Japan and Europe. The Finnish supplied all the interior furnishings. A sense of awe was evoked at every corner. Its marble façade sparkled in the sun, the wooden floors buffed to a mirror finish. No costs were spared, the whole site designed to remind everyone who worked there that they were special.

Only the best for the best.

And officers, like him, who worked the North American Department had ranked as the most important.

Then it all vanished.

“Did you ever see what happened to the Woods?” he asked. That was how they’d referred to the First Directorate headquarters.

Kelly shook his head. “I never went back after that night with Andropov. Never had an opportunity.”

“You were lucky. It would have shamed you. I went in ’94. The building was crumbling, paint scabbed and peeling, the inside filthy, most of the people drunk by midday. That Finnish furniture, which we so admired, was either gone or destroyed. In the bathrooms were dozens of liquor bottles. Everything reeked of alcohol and tobacco. No toilet paper or paper towels anywhere. People stole those as fast as they were laid out. You used old newspapers to wipe your ass. The place, like us, had been allowed to rot.”

It sickened him to think about it. Bright, loyal, confident men broken in half. But he needed to never forget. Hate provided a powerful fuel for his aging emotions. As a foreign officer living overseas he’d learned that everything was temporary. Training taught him to suspend the mind in the surrealness around him. Home was always Moscow, familiar and comfortable, but when that world ceased to exist all logic and reason had fled him.