Repairing and Strengthening Norms of Nuclear Restraint

[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]

This article discusses issues and recommendations originally outlined in Good Governance Paper No. 20: Repairing and Strengthening Norms of Nuclear Restraint.

In November 2020, in Good Governance Paper No. 20, I urged Congress to pass a statute to reduce the potential for the president to order reckless, unwarranted, or otherwise illegal use of nuclear weapons. The insurrection of Jan. 6, 2021, and the hours and days that followed laid bare the risks inherent in the status quo of nearly unchecked presidential power regarding the Bomb. Alongside January 6th’s crisis of democracy, a nuclear command and control crisis played out in a remarkable series of conversations involving the speaker of the House, the chairman of the Joint Chiefs of Staff, and other senior military officers.

More than a year after the insurrection, Congress has not acted to statutorily structure the nuclear launch decision-making process in a way that reduces the risk of a president ordering an atomic atrocity, while still allowing a rapid presidential decision in a true nuclear emergency. Congress should act before memories fade and the nation potentially again confronts the prospect of a president with nuclear launch codes who is willing to act against the law and best interests of the country for their own personal benefit.

The Nuclear Command Crisis of January 2021 – and Ghosts of Nixon

On Jan. 6, 2021, then-President Donald Trump inspired a massive crowd of far-right militias and other supporters to assault the Legislative Branch of the federal government and prevent it from certifying election results as required by the Constitution. Senator Mitch McConnell, then Senate Majority Leader and now Minority Leader, has accurately described the attack as “a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election from one administration to the next.” As members of Congress and his own vice president were evacuated and blood was shed at the Capitol, the president was publicly silent for hours despite widespread pleas to call off the attack and deploy the National Guard. According to firsthand accounts, the commander-in-chief exulted as he watched his supporters on television violently attack the Capitol. Repeating the Big Lie of a stolen election that motivated the assault, Trump only reluctantly issued a half-hearted call late in the day for the “very special” assailants to “go home.”

The January 6th insurrection presented a very real threat to the nation’s nuclear command and control system. The rioters erected gallows for the vice president and hunted the halls of the Capitol for him and for the speaker of the House, forcing their just-in-time evacuation along with the Senate leadership. In this way, the insurrection placed in mortal peril the second, third, and fourth designated successors to the presidency under the Constitution and statute. Evacuated along with Vice President Mike Pence – mere feet from a violent mob that had overwhelmed police and entered the Capitol – was the vice president’s nuclear “football” containing nuclear launch codes and communication equipment.

Presidential succession was no idle question. Trump’s course of conduct raised imperative questions about his capacity to do the job of president. Both of the Constitution’s processes for removing a president – impeachment and removal by Congress, and removal by the cabinet under the 25th Amendment – were the subject of intense discussion among senior government officials that day and in those that followed. There were many calls for the president’s resignation, and multiple cabinet members resigned in protest. Had the January 6th attack been only slightly more violent and rapid – for example, if the Capitol Police and the militias as they fought had employed the guns they were carrying, or if the mob had overwhelmed the Capitol before the leadership’s last-minute evacuation – then the attack could foreseeably have resulted in the deaths or abduction of the top three presidential successors and loss of control of a nuclear “football.” These events may have been enough to prompt cabinet removal of the president on Jan. 6 or his snap congressional impeachment and removal. A traumatized nation could have awoken on Jan. 7 to a…