If US politics was one of those classical Greek dramas, the gods now guiding Donald Trump’s fate would almost certainly be portrayed as a roisterous gang of devious tricksters, eager to set yet more roadblocks in his path to continued tenure in office at every plot turn. (Or, perhaps, these roadblocks are the natural and logical consequences of his hubris and narcissism.)

Late on Sunday night, 27 September, The New York Times published an exhaustive analysis of the president’s finances and tax status over two decades (based on their access to a massive trove of his tax records). Examining them thoroughly, the paper described appalling demonstrations of just how bad a businessman he really was (most of his properties are money losers), and how that dreadful lack of business acumen transformed into a pattern of uber-aggressive tax avoidance that went right to the lip of the volcano (if not over into the depths of the caldera) with potential charges of tax fraud and evasion.

Those massive business losses over the years, the revelation that he is personally on the hook for close to half a billion dollars in debt in the next few years with few actual profit-generating investments, and that for several years he paid no personal federal income tax and in two other years paid $750 per year have comprehensively shredded his business reputation. And that was just the first brick through the Trumpian windshield in the week.

Then, on Tuesday evening, before a national and international audience of many millions, he gave a presidential debate performance that was, to put it kindly, unique. Uniquely horrific, that is. He spluttered, he roared, he chattered incessantly, he interjected without letup, he mugged, he smirked, he lied and trafficked in some vile smears and rumours, he insulted, he refused to follow the mutually agreed upon debate format, and, to top it all, in defiance of any semblance of adult behaviour, he virulently attacked his opponent’s son. And then he chose not to denounce violence by white supremacists, only asking them to “stand back and stand by”.

Broad public opprobrium followed almost immediately, concerning his performance in the “debate” with opponent Joe Biden. In overwhelming numbers, Americans gave the president a thumbs-down for his performance, and even his strongest supporters were forced to admit that Trump had come out far “too hot” and way too ill-disciplined. There obviously has been no benefit to his now-faltering campaign – let alone to any appreciation of Trump’s adultness, his sense of public dignity, or any appearance of gravitas in his behaviour. Accordingly, this has not helped Trump to make up ground on his opponent, the former vice-president under his predecessor – either in the national polling, or, crucially, in polls in several of the most crucial swing states such as Florida and Pennsylvania.

But the gods were not yet done with Donald Trump. It turns out that this disaster of a debate bled inexorably into the next stop along Trump’s very own personal Via Dolorosa. Now it became mixed with his nomination to fill a newly vacant Supreme Court seat, and then, further, towards the end of the week, with the growing confusion over the actual circumstances of the president’s own case of Covid 19.

The president’s continuing insouciance over Covid-19 has meant his family and close advisers sat through the Tuesday debate, ostentatiously sans masks, even as the debate’s hosts – Case Western Reserve University/Cleveland Clinic – had declared it mandatory for the audience to wear face masks. In fact, the Trump ensemble arrived sufficiently late that they were not available for any possible infection testing, and they simply sashayed into their seats via the honour system re tests. Meanwhile, it has become increasingly clear that Trump’s White House nomination event for the new Supreme Court justice – with hundreds of people sitting packed tightly together, again without masks, at an outdoor event (and then a further, still more cosy gathering inside the White House) – was almost certainly a super spreader pandemic infection node. Really helpful, that.

Within days, a growing number of White House and campaign aides tested positive for Covid-19 (with and without symptoms), along with several Republican senators. (They are now self-quarantining. Crucially, some are also members of the Senate Judiciary Committee, the committee that would examine Judge Amy Coney Barrett’s bona fides for her nomination to the apex court and any vote on the floor of the Senate.) 

Then the president and his wife were declared to be positive for Covid-19 as well, with the president said to be showing “mild” symptoms. Regardless of any low-level symptoms, the doctors dispatched him to the government’s Walter Reed military medical complex in suburban Maryland for a mix of aggressive, even experimental, treatments. At that point, the briefings by the doctors and the president’s chief of staff managed to make the true state of the president’s health that much murkier through their conflicting statements.

The explanation is now a confused tangle of statements on the timeline as to when the president showed symptoms, was tested and then declared positive for the disease. As a result, an increasingly troubled public is now much less than thoroughly well-informed over the actual state of the president’s health. There is also the fact that, so far, negatively tested White House staffers seem to be getting confusing advice about how they should deal with these troubling facts for their own safety (including at least one memo that indicated the president didn’t like the appearance of masks). There is even concern about whether the White House authorities have really been assiduous in engaging in the critically important contact tracing of all possible people who may have been infected from all that earlier risky business by Trump and company.

Accordingly, this has put the final weeks of the 2020 presidential campaign into serious confusion and turmoil. After months of the president attempting to shift public discourse away from the severity of the Covid-19 pandemic and on to any other possible topic, the president’s medical circumstances have now thrust the pandemic right back onto the centre of the court, with all eyes on this sudden turn of events.

It has not helped matters that public knowledge of the actual state of the president’s health is now sufficiently murky that it is drawing awkward comparisons with the largely secretive, shrouded way Dwight Eisenhower’s multiple heart attacks, John Kennedy’s Addison’s disease, Ronald Reagan’s treatment after an assassination attempt, or even Franklin Roosevelt’s multiple, growing health issues towards the final years of World War 2 were handled in their respective time periods.

Given the president’s medical circumstances, it has now become an open question as to whether either or both of the two upcoming presidential candidate debates will even take place. In response to his previous performance, some are questioning if it is even worth it to the country for Trump to appear, as such a performance would just add further insult and injury to his already flailing reputation. Meanwhile, this week will see the vice-presidential candidates’ debate between incumbent Vice-President Mike Pence and California Senator Kamala Harris.

Now, what happens if the winning candidate dies between the election and inauguration? Obviously, if it were the incumbent president, then the usual rules of succession would apply, but mischief could well ensue if the winner is not already the incumbent president, and if the fight then moved to the Congress, given the need to have a living president in office. 

Vice-presidential debates are usually less important than presidential ones, but given the ongoing pandemic, the septuagenarian status of the two presidential candidates, and the current medical condition of the incumbent president, there may be much more attention on this upcoming event. This, the thinking goes, can help voters judge which of the candidates is best suited to step in during the next four years, if actuary tables run true to form.

And that, of course, leads us to the question of presidential succession, should something happen to one of the candidates or to the man elected president. In the easiest variation, should a sitting president die in office, the vice-president automatically is sworn in as the new president. The order of succession thereafter is the speaker of the House of Representatives and then the president pro tempore of the Senate. That is clear in law, even if the old idea that behind the vice-president stood the secretary of state tripped up Alexander Haig as secretary of state after Reagan was wounded in an assassination attempt. What happens if the incumbent president dies in the period after the election but before the inauguration on 20 January? Same as above. That is an easy one.

However, what happens if a presidential candidate dies before the election? Technically, a deceased person could be voted for by the electorate. This would be more than a bit awkward for the country, but the affected party might well choose to hold a rump convention to pick a new nominee at the last minute. (Tom Eagleton was replaced on George McGovern’s ticket after it became known that Eagleton had been subjected to electro-shock therapy for depression years before.)

But asking the question of what happens if Trump can no longer run, The New York Times explored the topic and concluded that it could get messy very quickly. The paper reported:

“First, the Republican National Committee would have to produce a new nominee, a process that would involve Chairwoman Ronna McDaniel and the 168 national members – three from each state and territory. But since many states have already started printing, mailing and accepting ballots, and some have begun in-person voting, the name of a new nominee could be unlikely to be printed on ballots in time for Election Day.

“Then it would fall to individual states to decide how to proceed, and most have not set rules for this situation ‘It would be a question of what each state’s law says or doesn’t say about what happens in this eventuality, and many state laws are just silent on this possibility,’ said Richard L. Hasen, a law professor at the University of California, Irvine, who also discussed the issue on his Election Law blog. ‘So there may be questions about what to do.’ ” 

This could be fun….

Still, once an election takes place, the respective states must certify the electoral votes of their states as a result of the popular vote, state by state, and then send the results to the Senate to be officially recorded. The votes of the electors are then sent to Congress where the president of the Senate opens the certificates and counts the votes. This takes place on 6 January, unless that date falls on a Sunday. In that case, the votes are counted on the next day. An absolute majority is necessary to prevail in the presidential and the vice-presidential elections – that is, half the total plus one electoral vote is required. With 538 electors, a candidate must receive at least 270 votes to be elected to the office of president or vice-president.

Should no presidential candidate receive an absolute majority, the House of Representatives determines who the next president will be. Each state may cast one vote, and an absolute majority is needed to win. Similarly, the Senate decides who the next vice-president will be if there is no absolute majority after the Electoral College vote. But in the event of a deceased, winning candidate, the logic of this process (and sanity) would mean the Senate would presumably choose to pick the living, winning vice-president as president – although that might conceivably generate a court challenge by the losing candidate. But if the losing candidate were to die – it would be sad, but it would also be no harm, no foul.

Now, what happens if the winning candidate dies between the election and inauguration? Obviously, if it were the incumbent president, then the usual rules of succession would apply, but mischief could well ensue if the winner is not already the incumbent president, and if the fight then moved to the Congress, given the need to have a living president in office. 

In still another alternative scenario, if neither (living) candidate actually won the required 270 out of 538 electoral votes, that would mean the two major party candidates had each ended up with 269 electoral votes. In that case, as noted above, the choice for who becomes president goes to the House of Representatives where each state’s congressional delegation gets one vote, ie, 26 state delegations would pick the president. This would be the newly elected and just-sworn in Congress, rather than the current, lame duck one. As such, it is possible the new Congress could pick the candidate who had gained fewer popular votes nationally, but was still selected by a majority of those state congressional delegations controlled by the other party.

Proud Boys: Proudly fascist, proudly backing Donald Trump

And, of course, none of this takes into consideration the possibilities of disputed or competing slates of electors and thus vote lists from individual states, arising out of court challenges over disputed mail-in and advance ballots, launched by an angry but losing candidate. Or perhaps there could be ostensibly non-partisan challenges by citizen groups or NGOs claiming there had been serious efforts at voter suppression, or overzealous disqualifications of voters and ballots.

In sum, even more than the constant bleating by Trump about mass voter fraud and miscellaneous voting hoaxes and rigged elections by Democrats or, presumably, the evil efforts of China, the actual circumstances of Covid-19 may well be the real pot-stirrer for this 2020 election – especially if a candidate becomes incapacitated or dies just as this electoral process moves into its final weeks. It is no longer an academic exercise, given the president’s current illness. In all of this, we haven’t even mentioned the possible need to invoke provisions from the 25th amendment to the Constitution. This is the amendment that sets up an orderly but politically delicate process of declaring a president incapable of governing by virtue of medical or psychological circumstances, and thus replaced, temporarily or conclusively, by the vice-president.

Now, if both the president and vice-president were to become incapacitated, then what happens? As Politico argued the other day: 

“Given the current makeup of the executive branch, it’s not hard to imagine a scenario in which Secretary of State Mike Pompeo might, with the help of an aggressive attorney general, William Barr, challenge any attempt by Nancy Pelosi to ascend to the presidency if both Trump and Pence are incapacitated by Covid-19 – perhaps even preemptively putting out a legal opinion that Pompeo is legally next in line for the acting presidency. Could Nancy Pelosi assume the acting presidency and fire Barr to get her own contrary legal opinion? Would Barr treat such an order as legitimate? Would the Supreme Court weigh in? How those questions would be answered would almost certainly hinge less on actual legal fights and more on vague public sentiments – questions such as whether the president or vice president looks likely to recover.”

If such hard decisions become required between now and the election just weeks away, or between the election and the inauguration, that would truly set some hungry cats among some very nervous pigeons. DM