In the early days of the Trump administration, when things were much simpler, there was so much turmoil surrounding Donald Trump’s erratic behavior and repeated interference with the Russia investigation that Rod Rosenstein, the deputy attorney general, briefly floated the idea of secretly recording the president and invoking the 25th Amendment to the United States Constitution. That suggestion, which never went anywhere and which Rosenstein has played down, was made in the chaotic days after Trump fired James Comey; triggering the amendment would’ve allowed the Cabinet and the vice president to declare him “unable to discharge the powers and duties of his office.”
That was then. Now, with Trump spending a few days at Walter Reed Medical Center as he is observed and treated for the coronavirus, the section of the Constitution allowing for the temporary or permanent replacement of the president is fully on the table, at least in principle. “The president’s vitals over the last 24 hours were very concerning, and the next 48 hours will be critical in terms of his care,” Mark Meadows, the White House chief of staff, said on Saturday in a candid assessment. “We’re still not on a clear path to a full recovery.” Of course, Trump doesn’t like candor, and he immediately scrambled to paint a rosier picture of his current condition. As of late Saturday, he was not yet “out of the woods.” And on Sunday, it became clear that the president’s doctors aren’t telling us the full picture of his true prognosis.
Because, in fairness, the Trump administration cannot be trusted to be forthright with the American public, not even on matters of life and death, we’d be all the wiser to understand how the 25th Amendment works, how the prospect of presidential incapacity could trigger the legal line of succession, and how the election and transfer of power themselves can go into unchartered territory — if not complete chaos.
Get ready for some game theory.
First off, the United States has been through drills like this before. In 1981, President Ronald Reagan was shot at close range while in office, and his aides considered the 25th Amendment as a possibility. Cass Sunstein, a Harvard Law School professor who was a young lawyer in the Justice Department’s Office of Legal Counsel at the time, wrote recently in Bloomberg about how he became the office’s resident 25th Amendment expert and, when Reagan was shot, was asked to draft two declarations under it: One involving section 3 of the amendment, which allows the president to voluntarily and temporarily declare himself “unable” to perform the duties of his office, thus transferring those responsibilities to the vice president, who then becomes acting president; and another involving section 4 of the amendment, where a majority of the Cabinet plus the vice president declare the president’s inability.
In the latter scenario, the president may regain power by declaring in writing that he’s recovered and ready to regain power. That would be the end of it, unless the Cabinet and vice president disagree with the president’s assessment — in which case the disagreement would be kicked over to Congress, which would render its verdict on the president’s capacity to hold office on a two-thirds, supermajority vote.
Far more straightforward is what would happen in the event Trump were to die from Covid-19. That’s governed by section 1 of the 25th Amendment. “Under the clear and simple terms of that section, the Vice President ‘shall become’ President upon creation of a vacancy in the office of President,” states a memorandum prepared by the Reagan administration in 1985. No ambiguity there. That means Vice President Mike Pence would succeed Trump as president, and the office of vice president would become vacant, triggering section two of the amendment, under which Pence could nominate a new vice president subject to a majority vote in both houses of Congress.
Simple enough? As Sunstein notes, neither of his two declarations were ever used because Reagan recovered and thus there was no need to resolve one gray area in the amendment: the exact meaning of the word “unable.” Who’s to say what that means in the age of COVID-19? The novel coronavirus is an unpredictable disease, presenting a range of symptoms depending on the patient’s age, pre-existing conditions, and other factors. Some people present mild to no symptoms. Others are rendered useless for weeks or months. Trump has shown a predisposition to refusing to show weakness, and so it is within the realm of the possible, should his condition take a turn for the worse, that he’d be unwilling to declare himself unable to serve.
Would Pence and the president’s other enablers go along and refuse to invoke the clear language of the 25th Amendment at the expense of the nation? Let’s hope things don’t get to that point. Or that others in the presidential line of succession, which is set out by statute in the event the vice president is also unable to serve, don’t have to get called on to lead the country with less than a month left before Election Day.
About the election: One reason everyone should hope for a speedy recovery for Trump — or at the very least that he lives well past January 20, 2021, when the next commander-in-chief will be inaugurated— is that millions are already voting or have voted in this year’s presidential election. No matter your political affiliation, the nation is better off with Trump remaining on the ballot. Congress could potentially move the election date to allow for the possibility of each state reprinting ballots and starting over. But with the coronavirus already having upended many states’ electoral processes, deadlines, and procedures, including for mail-in voting — and in the face of mounting legal challenges and Trump’s own efforts to make it harder for people to vote in the midst of a pandemic — the likelihood of Congress doing so is nil. As it should be.
Likewise, both the Democratic National Committee and the Republican National Committee have clear rules as to what happens if any of the current contenders for president or vice president exit the race for any reason, including death. But as noted above, those clear rules don’t matter when so much effort has gone into the ballots already being cast, as well as into educating voters about updated procedures for voting safely during this time. Because starting over would be almost impossible, the onus would be on the political parties to move as expeditiously as possible in choosing their replacement candidate — in the event the presidential candidate dies, the natural democratic choice would be for the vice presidential nominee to step up.
Once that replacement is in place, and after all votes have been tallied in the various states, the national party would then need to get the various state parties to line up their individual presidential electors behind the new ticket — and work closely with state legislatures to ensure electors remain faithful to voters’ and the party’s wishes. Yet not all states have laws in place allowing for this eventuality; and some state legislatures may wish to appoint their own electors. Some even release electors from their pledge if a candidate dies. In a perfect world where all of these variables align seamlessly, and where a ticket with a deceased candidate won a state, the Electoral College designees for that state would then cast their votes for the reconstituted party ticket. We don’t live in that perfect world — and instead have an arcane, “Rube Goldberg machine for selecting the president,” as election-law expert Richard Hasen put it in Slate. State laws are just all over the place.
For proof of how uncertain things are, not even the Supreme Court, in a recent ruling enforcing a state’s right to bind an elector’s vote for their pledged candidate, was willing to entertain the what-if of a candidate dying post-election but before electors cast their votes. In a footnote, Justice Elena Kagan, the opinion’s author, did concede that chaos would ensue. “We do not dismiss how much turmoil such an event could cause,” Kagan wrote. “In recognition of that fact, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. And we suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.” In other words, good luck, America. You’re on your own if the worst were to happen.
Where the Framers and Congress did provide clarity, luckily, was in what would happen if, after the election and the Electoral College vote take place, either the president-elect or vice president-elect were to die. The procedures would be much more cut-and-dry then. Under the 20th Amendment, a president-elect’s death would allow the vice president-elect to be sworn in as head of state on Inauguration Day. Federal law takes care of the rest. “If both the president-elect and vice president-elect die, the Presidential Succession Act of 1947 dictates that the Speaker of the House would resign from the House, swear in as acting president, and serve out the term,” explained Michigan State law professor Brian Kalt, who wrote a book on so-called constitutional cliffhangers.
As much as you may like the ring of President Nancy Pelosi, or dislike Trump, no one should wish for any of these nightmare scenarios to come to pass. True, the president deserves his share of scorn for his mishandling of the coronavirus pandemic and his barrage of misinformation and disinformation on mail-in voting during this time. His intransigence is on the ballot. Yet his intransigence isn’t enough to wish even more stress on an electoral structure already on the brink of collapse.
Originally Appeared on GQ