We have never been here before. The President and the First lady have contracted Covid-19. In the best case scenario he is asymptomatic, is able to continue with his duties, and after a two week quarantine returns to the presidential campaign. In other, far worse scenarios, a deterioration in Trump’s condition could set in motion a political drama without precedent, testing the Constitution with the first ever invoking of the 25th Amendment.
Most likely, President Trump will revive and return to the White House, and the campaign trail. He is, however, in a high-risk category, being over seventy and obese, and it is possible his health could deteriorate. In such a scenario, dogged by severe symptoms, isolated, and needing oxygen, or even the emergency assistance of a ventilator, Trump’s private physicians, and staff within the administration, would have to reach a consensus as to whether it was in the national interest to invoke the 25th amendment.
There are scant parallels. Richard Nixon had to temporarily fill in when Eisenhower suffered a heart attack and then required an operation for Ileitis during his first term; and Harry Truman, given Roosevelt’s health was deteriorating in the waning days of WW2.
At some time, probably early in the administration, the Presidential and Vice Presidential offices, in conjunction with one of the various Chiefs of Staff, will have liaised to discuss protocols under various scenarios relating to Section 3 of Article 25 of the constitution, which says that a President can declare himself “unable to discharge the powers and duties of his office.”
He must say this in a written letter to both the President pro tempore of the Senate, and to the Speaker of the House of Representatives. Were the President to do this, Vice President Pence would become Acting President.
Section 3 of Article 25 of the constitution says that a President can declare himself “unable to discharge the powers and duties of his office.”
Unfortunately, the Section 3 scenario that will have been prepared for might not be the only one under consideration. Instead, the administration, and the country, might find itself contending with the worst case scenario: the enacting, for the first time, of Section 4.
For some, it is dispiritingly evocative of the moment in 1987, when Donald Regan was replaced as Chief of Staff in the Reagan Administration by Howard Baker. Regan’s staff told Baker that Reagan seemed lazy and unable to do his job. According to the PBS program American Experience, Regan’s outgoing team insisted the President was inattentive, inept and lazy, and that Baker should be prepared to invoke the 25th amendment to take away his duties.
Watch: How the 25th Amendment gives power to VP Mike Pence
In President Trump’s case
President Trump, judging himself to be adequately in control, refusing to accept he is compromised, and arguing that his situation is improving, or at least manageable, might decide to contest the invoking of Section 3. Due to a complex mix of emotion and loyalty, two camps could emerge, leading to an impasse, with the President’s camp led by the President himself, who sees no sufficient grounds for his ouster. In this scenario, galvanized by having his back to the wall, he would decide to contest the constitutional maneuver.
Within his camp would be family and cabinet loyalists, who would feel either that the President was adequately cogent, or considered his condition manageable, comparable to the latter Reagan, and hardly in the category of a post-stroke Woodrow Wilson. Some might consider it more suitable for the Vice President’s duties and influence to increase, and the President’s to proportionally diminish, while retaining their positions and Trump still having the final say on principle decisions and the broad contours of strategy. With the election so close, followed by a lame-duck session, the domestic workload would be lighter.
President Trump, refusing to accept he is compromised, and arguing that his situation is improving, or at least manageable, might decide to contest the invoking of Section 3.
If a majority of the Cabinet sided with the Vice Presidential team and signed a letter declaring the President unable to perform his duties, they would submit the letter to the President pro tempore of the Senate, and the Speaker of the House. The Vice President would then become the Acting President.
There would of course be constant communication between the camps, including meetings and phone calls between the President and Vice President, to reiterate that the Constitutional safeguards are being legitimately invoked.
If Republicans decide Pence should take over
In a more far-flung scenario, it is then possible that the President, spurred on by his inner circle, and own instincts, might attempt to take back the Presidency by submitting a letter of his own to the President pro tempore of the Senate, and the Speaker of the House, as he is constitutionally entitled under Section 4.
This would be followed a few hours later by the Vice President and a majority of the Cabinet submitting yet another letter, stating they still consider the President incapacitated, and challenging his return. Presidential power, under this unlikely scenario, would technically change hands three times in the space of an afternoon.
In a far-flung scenario, it is possible that the President, spurred on by his inner circle, and own instincts, might attempt to take back the Presidency.
Congress would be given an official 21 days to make a decision. Given there are few guidelines as to how this might work, the House Speaker would likely schedule one on one meetings between President Trump, via link, and committee chair-people and factional caucus representatives.
Many members of Congress, concerned that the impasse would be laying the nation vulnerable geopolitically, would ask for constant independent medical updates.
At this point, the scenarios, and variables of the election become so complex that hypotheticals can go almost anywhere. The best-case scenario, of course, is that the President remains largely a-symptomatic, and returns to his duties as President as quickly as possible.
The best-case scenario, of course, is that President Trump returns to his duties as President as quickly as possible.