Law professor: President Trump’s COVID-19 diagnosis risks uncharted constitutional territory

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Editors note: all interviews were conducted before President Trump’s transfer to Walter Reed hospital on Friday.

(WJHL)- President Trump’s positive COVID-19 test poses an unprecedented situation ahead of a pivotal election, according to political science and constitutional law experts.

“I don’t recall anything like this before. I mean, we’re a month out, right?” said Gail Helt, an assistant professor of political science at King University.

“It’s a hot mess,” said UVA Wise political science professor Heather Evans.

“[COVID-19] is inside the White House. It’s inside the highest levels of our government,” said Stewart Harris, a constitutional scholar and Lincoln Memorial University law professor.

If the president were to be incapacitated or pass away, Harris said the 25th Amendment is clear in stating the vice president would be sworn in as a replacement. But he believes the timing of the president’s diagnosis is constitutionally concerning.

“What the Constitution does not anticipate is what would happen if one or the other major party candidates were to die shortly before the election,” he said. “I mean should the election go forward with a ticket that’s in some sense empty in one slot? Should there be a postponement of the election in that case? Which of course, a lot of people would object to.”

Harris noted ballots are already being cast for the presidential election.

“And people will continue to do so between now and November 3rd. What do you do in such a circumstance? That’s the real problem unaddressed by the Constitution,” he said.

If a major party candidate dies so close to the election, Harris says there are no good options.

“It’s going to be contentious, one way or the other. Even the seemingly reasonable option of postponing the election will create additional problems because there’s a timeline here,” he said.

Harris questioned how another election with new candidates could happen between November 3rd and early December.

“How could we even print up the ballots? And then of course there’s a hard deadline of January 20th, when the new president and vice president have to be sworn in, pursuant to the 20th Amendment to the Constitution,” Harris said.

Evans said the high-quality medical care received by the president will likely lead to recovery. But the virus will have political consequences. She noted the president will have to cancel campaign events for at least 10 days, with many in crucial swing states.

“Any events he has planned, he has to cancel those. Biden who has been campaigning on him not taking the virus seriously, that’s going to resonate with people now that Trump does have coronavirus,” said Evans.

If presidential debates between Trump and Biden still occur, Evans believes the situation could trigger a change in format, including going virtual.

Evans also expects President Trump’s messaging on the virus to change going forward.

“More somber. More ‘we need to take this seriously,'” she said.

Helt sees few upsides for the President’s campaign.

“The only possible thing that could help him is if there’s suddenly a swing of ‘oh I feel so bad for him.’ A swing of empathy towards the president here,” said Helt. “But honestly, so many people are grieving the loss of their own loved ones that I don’t see that happening.”

Politics aside, Helt also believes the situation sends a health message.

“If the president – who is tested every day, who does have the best medical care, who has a team of Secret Service to keep people away from him – if he can contract this disease, any of us could,” she said. “It’s incumbent on us to take this seriously.”

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