I am not going to write about the political implications of Trump’s illness although they are enormous and looming. I will be concentrating on the legal and constitutional chaos that could paralyse the country. And cheer the enemies of democracy.
Let me try and work through the law as it stands and the possibilities.
What if Trump dies during the campaign?
To date, only one presidential candidate died during a general election, Horace Greeley. He was standing against Republican President Ulysses Grant. Greeley was a newspaper publisher and a liberal Republican. He died after the popular vote had been counted, but before the electoral college had voted. Electors of the College changed their allegiances from Greeley which resulted in Grant being re-elected as President. It would have been a bit daft if they hadn’t.
Can the election be postponed because of the ill health of a candidate? Or for any other reason?
In theory yes. A law Passed in 1845 makes it clear that on the Tuesday after the first Monday in November every four years a Presidential election must be held. This can be postponed by a majority vote of Congress and the Senate.
What happens if Trump is unable to properly fulfil his duties as President?
This is provided for in the 25th amendment. It is split into two parts of particular interest. Section 3 and 4.
Section 3 allows a President to declare himself temporarily unable to discharge his powers and duties. This has happened probably thrice. Certainly when Reagan was shot. Perhaps when Bush had an operation or two. Politically there is no way Trump would do this so close to an election.
Power then transfers to the Vice President. If the Vice President finds himself unable to discharge his powers and duties it transfers to the Speaker of the House. However, Nancy Pelosi’s term of office expires in December. After her power transfers to the President of the Senate pro tempore (not Pompeo SKY news!) This is eighty seven year old Chuck Grassley. But if the Democrats control the Senate to its eighty year old Patrick Leahey.
Section 4 provides for when a President is removed from office because he is unable to discharge his powers and duties. This is the political and constitutional nightmare. It has never been invoked despite Franklin Pierce and Calvin Coolidge having debilitating breakdowns and Woodrow Wilson having two strokes and completely lost the plot. And there is a whole raft of contradictory legal views on the definition of ‘unable’. The Supreme Court May have to become involved. A nightmare.
The procedure is cumbersome. If two thirds of both Houses vote that the President is unable to discharge his duties and powers the Presidency transfers in the way that I have described. But it could take a while before this happens.
Section 4 provides for the principal officers of executive departments, the cabinet or ‘another body as Congress may provide’ to come to a conclusion. They then have to send it to the President of the Senate Pro Tem and the Speaker of the House. The President can appeal in writing. Congress has forty eight hours to decide or twenty one days if in recess.
But, and this is the very big but, Trump has to leave office at midday on 21 st January 2021 even if the election is postponed. And so does Pence. Unless he wins the election.
At the end of the day this is raw politics.