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Dan Marcus

From: Ho, James (Judiciary) [James_Ho@judiciary-rep.senate.gov]


Sent: Monday, August 02, 2004 5:11 PM
To: Dan Marcus
Subject: ELECTION/HOMELAND/CONTINUITY: Cornyn Protocol would close 'window of vulnerability' on
Inauguration Day

It was a pleasure chatting with you. As I mentioned to you on the phone, Senator Cornyn asked me to contact you, because
the co-chairs of the commission recently informed him at a recent Senators briefing of their belief that enacting measures to
ensure continuity of government remains an important issue before the Congress.

Given the commission's limited time and resources during these last few weeks, I suppose that the best thing that we could
ask for is a letter of endorsement (or a letter of general encouragement if a specific endorsement is not available) for Senator
Cornyn's various proposals to ensure continuity of government, with respect to both Congressional operations as well as
Presidential succession.

Accordingly, I am sending you a short series of e-mails that detail Senator Cornyn's various proposals. This e-mail (see
below) describes the Senator's most recent proposal, to deal with Presidential transitions, which we spoke about briefly on
the phone. As you can see, the proposal has strong support amongst constitutional law scholars.

In addition, this Presidential transitions resolution does relate to one of the recommendations of the 9/11 commission's final
report. We may add the following clauses to the resolution accordingly:

Whereas the National Commission on Terrorist Attacks Upon the United States (Public Law 107-306, Title VI)
expressly recognized the need to "Improve the Transitions between Administrations" in its Final Report;

Whereas the Commission specifically recommended that, "[s]ince a catastrophic attack could occur with little or
no notice, we should minimize as much as possible the disruption of national security policymaking during the
change of administrations by accelerating the process for national security appointments," and that "the process
could be improved significantly so transitions can work more effectively and allow new officials to assume their
new responsibilities as quickly as possible";

Whereas the Commission suggested that "[a] president-elect should submit lists of possible candidates for
national security positions to begin obtaining security clearances immediately after the election, so that their
background investigations can be complete before January 20," that "[a] president-elect should submit the
nominations of the entire new national security team, through the level of under secretary of cabinet departments,
not later than January 20," that "[t]he Senate, in return, should adopt special rules requiring hearings and votes to
confirm or reject national security nominees within 30 days of their submission," and that an outgoing
Administration should work cooperatively with an incoming President to ensure a smooth transition, in the interest
of national security;

Whereas there is no more important "national security position" than the office of President, and thus it is
essential to national security that any new Administration establish its own clear and stable line of succession to
the Presidency as quickly as possible;

We look forward to hearing from you and to working with you on important and needed measures to ensure continuity of
Congressional and Executive Branch operations.

In the meantime, if there is anything that we can do to help, please do not hesitate to contact us.

James C. Ho
Chief Counsel
U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights & Property Rights
U.S. Senator John Comyn, Chairman
Dirksen Senate Office Building Room 139
(202) 224-9614
(202) 228-2281 (fax)

8/3/2004
Page 2 of4

—Original Message
Senator Cornyn has introduced a Senate resolution (S. Res. 419) to ensure continuity of government and the
smooth transition of executive power during one special window of vulnerability - the period leading up to and
immediately following the inauguration of a new President. The resolution would establish a non-binding protocol
under which the outgoing and incoming Presidents would make efforts to cooperate with each other, and with the
Senate to the extent possible, to ensure that terrorists never have the power to determine, by launching a terrorist
attack, which political party controls the White House.

Please find attached a copy of the resolution, Senator Cornyn's floor statement, and letters from constitutional law
scholars Walter Dellinger, Michael Gerhardt, Cass Sunstein, Laurence Tribe, Howard Wasserman, and Douglas
Kmiec supporting the resolution. In addition, please find below a press release from Senator Cornyn's office, as
well as an article from Roll Call about the resolution.

—Original Message
From: Stewart, Don (Cornyn)
Sent: Friday, July 23, 2004 6:28 PM
To: Stewart, Don (Cornyn)
Subject: ELECTION/HOMELAND/CONTINUrrY: Cornyn Protocol would close 'window of vulnerability1 on
Inauguration Day

JOHNGORNYN
United States Senator - Texas
CONTACT: DON STEWART
(202) 224-0704 office (202) 365-6702 cell
FOR IMMEDIATE RELEASE July 23, 2004

TERRRORISTS SHOULD NOT CHOOSE OUR NEXT


PRESIDENT
Cornyn Protocol would close 'window of vulnerability" on Inauguration Day
WASHINGTON - It's January 20, Inauguration Day. The new president and vice president sit on the
center platform just steps away from the Capitol Rotunda with leaders of both houses of Congress
nearby. The stage is set for an historic ceremony. But it is also a window of vulnerability with enormous
national security implications.

During previous Presidential transition periods, an incoming President has had to serve with Cabinet
members from the prior Administration - including sub-Cabinet officials from the prior Administration
acting as Cabinet members - for varying lengths of time. But in the event of a successful inaugural day
attack, the official who could become the acting President— perhaps serving for four full years—could
very well be a member of the outgoing Administration, a member of the political party that the
American people expelled from office in the election.

"National security and continuity of government experts have long recognized that if terrorists launched
a successful strike on Inauguration Day, it could wipe out not only the incoming President, but also the
first three people who are in the line of Presidential succession under current law: the vice president, the
speaker of the house, and the president pro tempore of the Senate," Cornyn said. "If that were to happen,
the presidency would revert to a member of the previous administration, and the election would be
undone by terrorists. This is an unacceptable risk, but fortunately, one with a simple remedy."

To help close the window of vulnerability when the presidency changes hands, Sen. Cornyn introduced

8/3/2004
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a Senate resolution (S. Res. 419) expressing the sense of the Senate that a new protocol should be
established to prevent disruption in the continuity of presidential succession. The Cornyn Protocol
encourages outgoing Presidents to cooperate with incoming administrations and the Senate to promote
continuity. It expresses the sense of the Senate that the outgoing President nominate and appoint, and
Senate confirm, as many members of the incoming cabinet members as possible prior to inauguration.

"Terrorists should not choose our next President," Cornyn said. "The laws governing presidential
succession are wholly inadequate, and potentially unconstitutional, and our continuity procedures don't
reflect the realities of a post-9/11 world. It is now time for us to find the gaps in our national security
and address them before it is too late."

Sen. Cornyn also co-chaired a joint hearing on September 16, 2003 with the chairman of the Rules
Committee, Sen. Trent Lott (R-Miss.), on long-needed reforms to the presidential succession statute.
And the pair introduced legislation in February to fundamentally reform the presidential succession law
and ensure continuity of the presidency in the event of a terrorist attack or other catastrophic event: the
Presidential Succession Act of 2004. There have been no comprehensive reforms of the presidential
succession statutes since 1947. This legislation, like the Cornyn Protocol, addresses the same problem: a
change in party control of the White House as a result of a terrorists attack, rather than an election. By
taking members of Congress out of the line of succession, thus removing a provision that many scholars
consider unconstitutional, the legislation ensures that a terrorist attack that kills the president and vice
president will not change the party in control of the White House.

Cornyn is also the author of legislation to ensure the continuity of Congress. He authored a
constitutional amendment (S.J. Res. 23) that would authorize Congress to enact laws to provide for
Congressional succession, in the event of the death or incapacity of one-fourth of either body, just as
Article II of the Constitution authorizes Congress to enact laws to provide for Presidential succession.
The amendment was approved on a bipartisan vote of the Constitution subcommittee. The legislation (S.
2031) would empower each state to craft continuity mechanisms that would be triggered in the event of
incapacity of one-fourth of the Senate. Incapacitated members would have the right to reclaim their
office at any time.

Sen. Cornyn chairs the subcommittee on the Constitution, Civil Rights & Property Rights. He is the only
former judge on the Judiciary Committee and served previously as Texas Attorney General, Texas
Supreme Court Justice, and Bexar County District Judge.

30

http://cornyn.senate.gov
Original Message
From: Ho, James (Judiciary)
Sent: Monday, July 26, 2004 10:41 AM
To: Ho, James (Judiciary)
Subject: Roll Call: Cornyn Seeks Fix on Succession

http://www.rollcall.com/issues/50_12/news/6382-1 .html

Cornyn Seeks Fix on Succession


July 26, 2004

By Suzanne Nelson,
Roll Call Staff

8/3/2004
Page 4 of4

Sen. John Cornyn (R-Texas) wants to ensure that if Sen. John Kerry (D-Mass.) wins in November, his Cabinet
choices will be nominated by President Bush and confirmed by the Senate before noon on Jan. 20, 2005.

Not that Cornyn wants to see his fellow Texas Republican lose. And his reasons are more fundamental than party
comity or facilitating early successes by a Kerry administration. Cornyn wants to make sure an intact line of
presidential succession is ready in the event that the president and vice president are killed before their Cabinet is
nominated and confirmed.

Under Cornyn's plan, the president-elect would nominate, and the Senate would confirm, individuals to posts in
the line of succession between Jan. 3 and Jan. 20.

The resolution states: "[Whenever control of the White House shall change from one political party to another, the
outgoing President and the incoming President should work together, and with the Senate to the extent
determined appropriate by the Senate, to ensure a smooth transition of executive power, in the interest of the
American people."

The country faces a particular vulnerability on Inauguration Day, which has been repeatedly cited by the
Homeland Security Department as a terrorist target, because all three branches of government are well
represented on the West Front for the swearing-in.

Regardless of whether a new president is sworn in, the Constitution dictates that the outgoing president's term
ends at noon Jan. 20. Per tradition, the outgoing president's Cabinet resigns before the ceremony, leaving the
federal agencies run by acting secretaries — little-known assistants and deputies who could become commander-
in-chief if the Speaker and the Senate President Pro Tern were killed along with the president and vice president.

'That means that, in the event of a successful inaugural day attack, the official who could rise to become acting
president, perhaps serving four full years, could very well be a member of the outgoing administration — indeed,
a member of the political party that the American people expelled from office at the most recent election," Cornyn
said in a floor statement Thursday before introducing the measure.

"As the resolution acknowledges," Cornyn continued, "Members of the Senate, regardless of political party
affiliation, agree that the American people deserve a government that is fail-safe and foolproof. And we agree
that, at a minimum, terrorists should never have the ability ... to change the political party that is in control of the
government — a principle that applies regardless of which party is in power."

Although the resolution he introduced is non-binding, Cornyn hopes it will begin to establish a protocol that future
administrations and Congresses will follow. A half-dozen scholars of various ideologies have written Cornyn
supporting his approach.

Senate Rules and Administration Chairman Trent Lott (R-Miss.) co-sponsored with Cornyn a similar resolution
introduced in February. It was a joint resolution, however, while this version would only require approval of the
Senate.

Copyright 2004 © Roll Call Inc. All rights reserved.

8/3/2004