Harry Litman [00:00:08]: Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. The haunted house rollercoaster ride that is the Trump presidency suddenly plunged off the tracks this week with the news that both the president and the first lady have tested positive for the Coronavirus.
Trump decamped to Walter Reed, leaving a flurry of questions in his wake: Legal questions about presidential succession, operational questions about running the government, national security questions about preventing adversaries from exploiting the confusion, medical questions about the gravity of his condition, and the identification of others, whom he may have infected, and political questions about the impact on the election, the Supreme court confirmation, and more.
And it was beginning to look as if the Rose Garden ceremony for Amy Coney Barrett had been a sort of super spreader, with several attendees — Ron Johnson, Tom Tillis, Kellyanne Conway, Chris Christie — now having tested positive for the virus.
The stunning revelations came just two days after a presidential debate between Trump and former vice president Biden, which the president, seemingly incapable of suppressing his interjections and third grade insults, turned into a 40 car pile up.
And just to round it all out, 11 Coronavirus cases have been traced to the pre-debate planning or set up for the presidential debate held in Cleveland on Tuesday. It was surely one of the strangest weeks in presidential history, and we are now left to try to make sense of it and separate fact from fiction through the multiple cloud covers of Trump's own mendacity, possible foreign disinformation on social media, and the national security legitimate need to potentially obfuscate Trump's true condition. So a lot more is cloudy than clear, but it's critical to do our best to analyze what's happening, and fortunately we have a fantastic group of prominent commentators to help guide us and they are:
Laura Coates. Laura is a senior legal analyst at CNN, and host of the Laura Coates show on Sirius XM’s Urban View. She's also an adjunct law professor at George Washington University School of Law, and speaks across the country on economic empowerment, social justice and civil rights issues. Laura, welcome to Talking Feds.
Laura Coates [00:02:50]: Thank you, I'm glad to be here!
Harry Litman [00:02:52]: Norm Ornstein, a resident scholar at the American Enterprise Institute and cohost of the AIS election watch. He's also a contributing editor for the national journal and the Atlantic; he's one of the country's foremost political thinkers, and in fact has been named one of the top hundred global thinkers for diagnosing America's political dysfunction. He is in addition, an expert on issues of presidential succession, having headed a commission on that very topic about 10 years ago. Norm, thanks very much for being here.
Norm Ornstein [00:03:27]: Always a pleasure, Harry.
Harry Litman [00:03:29]: Finally, joining Talking Feds for the first time, Michael Schmidt. Journalist, author and correspondent for the New York Times in Washington, D.C. He is a national security contributor for MSNBC and NBC News. Schmidt is a winner of multiple Pulitzer prizes for his reporting, including for breaking the news that Trump had asked FBI Director James Comey for a loyalty pledge. He is also the author of the just published and already New York Times bestselling Donald Trump v. The United States: Inside the Struggle to Stop a President, and he and I will be having an extended discussion about that book that will be published on Patreon next week. Michael, thanks so much for joining Talking Feds.
Michael Schmidt [00:04:25]: Thanks for having me.
Harry Litman [00:04:26]: All right. Let's just try to start a little bit with some of the facts on the ground and what we know and don't know. So, immediately you have a swirl of rumors and conspiracy theories on the web, starting with the most basic question. So fundamental is the mistrust of Trump at this point, has he tested positive? You're aware of, of naysayers on that, does everyone here agree that that basic fact is in fact true?
Laura Coates [00:04:57]: I think that it's true that there are naysayers. That's a basic fact. It's also true that people are fundamentally mistrustful of the president. But I think it's highly unlikely that this is a course of action he would try to lie about. I think that we have his doctor reporting he's been admitted to Walter Reed at this point. I do think that he in fact has been diagnosed, but it speaks to the larger issue of, there is such a lack of credibility that the American people feel towards and that they even question something like this.
Harry Litman [00:05:28]: Yeah. What's he up to, what's this scheme? And doctors have said not just that he's tested positive, he's got symptoms, right? He has a low grade fever, a cough and congestion. So, it's really up to the next level. What's your sense of the gravity of his current condition?
Norm Ornstein [00:05:46] I think it's clear that he has not only tested positive, but it's more serious than they have led on. You don't go to Walter Reed when you have superb facilities at the White House, unless there's something more than just mild symptoms. But remember that they knew that Hope Hicks, who had been symptomatic, had suffered already and likely was positive when they went to the debate.
And so, the deceptiveness here is not lying about having COVID, it's lying about the vulnerability that existed, the possibility that he had COVID and the willingness to have others become vulnerable so that they wouldn't let on about what was going on.
Harry Litman [00:06:31]: Yeah, I mean how stunning is that? I mean, we now know that Biden and his wife have tested negative, but he could have taken out the whole election.
Michael Schmidt [00:06:40]: I think that we're going to see how much it matters for this president to have a reservoir of not good will, but of people willing to listen to him and to trust his White House, because there's been this notion all along that the lie is that they have told will catch up with them because there will be a point at which they need to speak to the American people about something that the American public needs to know and trust.
And this might be the ultimate test of that. And we may see how much it really matters. And the fact that there's so much doubt about the president and about, as Norm was saying, the fact that his condition looks like it's probably worse than they've let on. That skepticism, that's the beginning of the answer to the question.
Laura Coates [00:07:31]: I mean, certainly Trump is not the first politician who the American public or the world has doubted. I mean, politicians are not normally considered to be. The most forthcoming and sincerest among us. I mean, pancake breakfast and kissing babies, you know, be damned.
They're not known as the most credible all the time, but I go back to day one for me is the unnecessary very beginnings of the skepticism of the crowd size at the inauguration. When you trade the good will, when you deplete your credibility bank account for unnecessary transactions like that, it leads to people asking the very questions Michael said, which was what happens if there is a national security threat and we have to believe in the president.
Well, here we have, are you talking about the line of succession and trying to figure out in a Waldo sort of way, where is Vice President Pence? Where are the others who might be in the line of session? Will there be a transition of power? All of these things has shown me what happens when you deplete over the course of a number of years, that sort of credibility in your account.
But it also speaks to the idea that remember, and as with what the Bob Woodward book talks about, this is the president who said that he will and is willing and did downplay a pandemic to avoid panic. Well, what could be more panic inducing than a president being admitted to a hospital, and no condition of power and no clear answer to any of the questions you raised today, Harry.
Harry Litman [00:08:54]: The credibility is on the line. They really need the American public to believe them, and that his account is empty and bankrupt will keep it from happening.
Michael Schmidt [00:09:05]: In the case of Trump, it's sort of a bastardized version of this, which is that you would assume that you would need a president to have credibility with the public so if he said to the public ‘Hey, y’all need to wear a mask to stop this virus from spreading.’
But in the case of Trump, it was the opposite where he was working basically to undermine that. So, I think it's just another example of how in the Trump era, we see the system being tested in ways that we never could have conceived. And we're trying to unwrap what would be a basic question of credibility and the presidency, and we get tripped up by the fact that the president has been part of the disinformation about the virus.
Norm Ornstein [00:09:44]: And disinformation even more generally. I think we would have seen outside of his core, a huge amount of skepticism in the 35 days before the election, of almost anything that he said that we would assume he was tilting to his own advantage, about ballots cast, about proud boys or almost anything else, but now we're at a different level.
And what I'm finding so stunning even today is, we find out that Hope Hicks, who's not just close to Trump, but has been in close proximity to large numbers of others in the White House, in a confined space on Air Force One and elsewhere, comes down with the virus, the president and the first lady do, two others at the Barrett event at the White House do.
And what do they do? They don't stop now and say, Oh my God, now we have to let everybody know. We all should be wearing masks. We need to take precautions. Mark Meadows, the chief of staff walks around the White House today, goes out and briefs reporters without a mask. Larry Kudlow, without a mask. They announced at the White House that they won't require masks in the White House where it has been a hot house now.
The Wisconsin Republican party files a lawsuit today, after all of this, to block the governor from putting in a mask requirement, and the Michigan Supreme court in a partisan vote blocks the governor of Michigan from a lot of the things she's done to protect the public in Michigan.
We're seeing a whole set of behaviors that are so jarring that you can't accept credibility in any way. And then let me throw in one other thing, which is every other time we've had a president who's had even a cold, or I remember before Jimmy Carter went in for his hemorrhoid operation, we have officials, including the doctors give a full briefing to the public so that they know exactly what's going on.
They haven't given us any information about what's caused the president to go to Walter Reed.
Laura Coates [00:11:42]: To add onto that as well, in addition to the idea of not having the information, we're talking about the fact that imagine if you are the DNC nominee, Joe Biden, who debated with him and, I understand, learned about the COVID diagnosis, the way everybody here. Here he is, certainly far more than six feet apart on the stage from the president of the United States, I think it was 12 feet to be exact is how far away their two podiums were. But imagine him sitting there for all that time and we already know the nature of that debate.
We already know the abusive nature of the president's commentary that evening. And we also know how that all transpired. And then to find out if you're him, having spent more than 15 minutes, remember the CDC guidelines say if you are within six feet of someone who was known to test positive and you are without a mask for more than 15 minutes, you're supposed to quarantine. This, the man who had a two hour debate and he learns it the same way.
And so you think about those sort of norms that Norman is speaking about, the idea that the information that the American people looks at to assess and evaluate a candidate, let alone an incumbent, whether it's a tax return to understand the nature of who they might be beholden to, or whether it's a discussion about one's health or preexisting conditions or co-morbidities, that would help you to assess somebody's viability. These are things that should not be hidden in a democracy, where we need an informed electorate to make the decision.
Michael Schmidt [00:13:09]: Picking up on that point. Take the last time the president went to Walter Reed as an example, this is something that I report on in my book, which is that he goes in November of 2019, at the time that impeachment is really accelerating and he says it's to begin his yearly checkup. He's going to get a head start on that, which on the face of it does not make any sense. It's a very curious thing.
It's only many, many months later that I get a chance to report in my book that when he was going to the hospital, they told Pence to be on standby because they thought they’d have to put him under, and that raises this question of, well what was really going on? So we knew it didn't make sense before, and now we're finding out in an anecdote in a book that it was so serious that they thought that they may have to transfer the powers of the presidency to the vice president. So when you see Mark Meadows come out today on the north lawn of the White House and tell reporters, ‘Oh, you know, he's, you know, mild symptoms.’ You have to be curious.
Harry Litman [00:14:16]: Yeah, very good point. And remember the whole chain of events, Laura brings up the inauguration, remember that his very first medical report in which his doctor, I think he's a doctor maybe at a medical degree, came out and pronounced with confidence, he's the healthiest president of all time.
Somehow he was able to discern that. I just want to underscore a point that Norm made that I think's very important. I had a conversation with a virologist today, and back to Hicks and the stunning irresponsibility of marching to the debate with the knowledge, almost certain knowledge that he had been infected.
The fact that they both he and the first lady were tested positive simultaneously suggest strongly that they didn't give it to one another. And therefore you look to events in which they were both present, which are not all that many really. And there is a lot of zeroing in now, the timing works out right for the Saturday Rose Garden ceremony for judge Barrett.
And we have, of course, president John Jenkins of Notre Dame who's tested positive, Senator Mike Lee, both of them, by the way, photographed not wearing a mask there at the time. So, it seems to be likely that it happened in a big event, meaning there are more dominoes to fall probably.
And just a general, kind of stunning dereliction in letting it all happen. Norm I wanted to turn to you because you are Mr. presidential succession, and there are some really difficult questions here. You have an article that's just been posted in the Washington Post outlook section this weekend, what do you see as being really critical and vexing in the whole notion of presidential succession should Trump become gravely ill?
Norm Ornstein [00:16:02]: So I became deeply engaged in this issue and the continuity of the three branches in the aftermath of 9/11. And we created the continuity of government commission, we did a big report on presidential succession. There are really two key elements here, there's the presidential succession act of 1947. The one that puts the speaker of the house in line right after the vice president, followed by the president pro tempore of the Senate and the cabinet. And there's the 25th amendment.
The 25th amendment is relevant in two ways, of course it affects the ability of a president, if there is no vice-president, to choose a new one, but it also deals with all of these issues of disability in the presidency.
Harry Litman [00:16:44]: We remember this came up when Rosenstein was talking about, do we need to activate section four of this if Trump is off the reservation, right.
Norm Ornstein [00:16:53]: So there are two elements of this. One is if a president can actually directly sign over the disability, which is what we're looking at now. The president is conscious and is willing and understands that he is unable to carry out his duties for a period of time.
The second is the involuntary, and that's what the section four is about. And that can happen if a president is comatose, or is non compos mentis, has dementia. By the way, we could see that happen with COVID because one of the symptoms is that you lose mental acuity. So, there are a lot of ways in which that happens.
One of the problems with the 25th amendment though, and keep in mind that Mike Pence now has said he's not going to quarantine himself, even though he was in a position where all of the protocols suggest that could.
Harry Litman [00:17:42]: The right thing to do for anybody who was in Saturday Rose garden, they should all be quarantining, right. That would be the state standard advice.
Norm Ornstein [00:17:49]: And all of those who were at the debate on Air Force One with them and so on. There's no provision in the 25th amendment, if both the president and the vice president are incapacitated, imagine if Pence gets COVID. Both of them end up on ventilators.
So, the presidential succession act in a way addresses this in that it sets up a succession if a president, vice president die, or have an inability, but there's no link to that. Let's say that they're both sort of out in operations for a day or two, and Nancy Pelosi says, okay, I'm going to invoke the presidential succession act and I will become acting president.
Lots of people would say no, and there's no direct link or provision to allow that.
Michael Schmidt [00:18:33]: If the president and the vice president are both on ventilators, you know, for some reason, who's in charge of the country?
Norm Ornstein [00:18:39]: And that's the question. Nobody is, we have no provision in place for a formal transfer under those circumstances. And what you can imagine is, not only the possibility of the speaker saying, all right, I should step in, but you could imagine Mike Pompeo saying, well, I'm really the one in line here, and I should be the one who should take over, and we could have a real crisis in terms of the clarity of the change of command.
It has not been resolved. And now for the first time, we have at least a possibility of a real crisis on that front, which could have great national security implications.
Harry Litman [00:19:16]: I mean, my sense, Michael, and Norm is the expert, is that there are two separate trails and one seems to lead toward the speaker and the president pro tempore.
And another seems to lead down in the executive branch. All of these are kind of imponderable and they are normally fantastically unlikely. Now they're just unlikely. So you're right. Norm. We could be looking at them. I have one quick question for you on this, and then I'd like to kind of move to the political implications. Let's say Pence becomes the acting president, I think that's the formal term, would he remain the president pro tem of the Senate at that point? And what his vote still count?
Norm Ornstein [00:19:58]: He is the president of the Senate, but he would not be president of the Senate as acting president. One little twist in this and this as well, that you should all understand, which is under the presidential succession act, the people in line are not allowed to serve if they have been impeached, the cabinet members. So if the house decided that they didn't want Mike Pompeo and maybe preferred Steve Mnuchin, who would be next after that, they could quickly impeach him. He doesn't have to be convicted to be taken out of the line of succession.
And of course, if it ever got to Bill Barr, I would hope that they would move in, as we say, a New York minute to impeach him and keep him from becoming acting president.
Laura Coates [00:20:36]: I think we can all agree it's a little too soon for the I word, for the impeachment word, but I will say just the idea that we were going through this sort of flow chart based on the instability, is that much more of a reason why we should not be left in the dark about what's happening? It's not just our general curiosity used here and you know, I'm as nosy as the next person, I am as intellectually curious as the next person.
But I feel as though there are some things that are ponderables you're talking about, if there were some things that could actually be dealt with in anticipation , that's one of the reasons we've got Congress. That's one of the reasons it should be hashed out before it gets to that. So I am not a fan of the idea of having Johnny come lately, be the way we look at this.
I mean, this is not a topic to procrastinate about, not just because there's an election looming, but because this is the kind of thing that makes the American people feel as though we have an unstable democracy when the things that we've taken for granted, ‘Oh, well, okay, there's a line of succession.’ I mean, there's television shows and movies made about somebody having to stay home from the state of the union address and what happens next.
And they all have a grasp as armchair sort of constitutionalists about what's supposed to happen. And then we have yet another instance when whatever's behind that, in case of emergency break glass is nothing but more questions. And that's really infuriating for a lot of Americans.
Norm Ornstein [00:21:56]: As it should be. And I will only say Laura, that I spent 19 years after 9/11, trying to get Congress to act on continuity for Congress, the Supreme Court and presidential succession and got nowhere.
Harry Litman [00:22:10]: As always, they should have listened to Norm.
Laura Coates [00:22:13]: There you go.
Harry Litman [00:22:14]: And on that note, it's time for our Sidebar segment. As Talking Feds listeners know, we usually have a well known person or celebrity explain an important legal term. Today, instead of our traditional Sidebar, we thought it made sense to instead answer in depth some of our questions from our listeners that we received on Twitter that pertain to the legal implications surrounding president Trump's COVID-19 diagnosis, on the election and Amy Coney Barrett’s nomination. And to do that, we are really fortunate to have spoken to Steven Vladeck, who is the Charles Alan Wright Chair In Federal Courts at the University of Texas School of Law and also an executive editor at the Just Security podcast. I spoke with Steve earlier, and he addressed many of these questions, here is a synopsis of what he had to say:
Harry Litman [00:23:12]: But there is real law here, right? People have anticipated it, and even constitutional law. So when you think presidential incapacitation or worse, what do you think about legally?
Steve Vladeck [00:23:26]: So I think there are two different buckets of questions, right? One is what happens to the president and the other is what happens to the election, and I think we should take those separately. So with regard to the president, I mean i think it's worth stressing that the sort of from 1792 until really JFK was assassinated, Congress had provided for situations where the president was dead but it had not provided for situations where the president was not dead but incapacitated.
So there was this sort of grey area about like if the president was in a coma, or under anesthesia, or whatever, and that’s really the origin story of what becomes the 25th amendment, which is first to sort of put what had been statutory law in to the constitution about presidential succession, but second to provide a procedure for what to do in cases in which the president is still alive but is unable to discharge his duties as president.
And there are two different sort of buckets, there's the section 3 scenario, which is when the president himself says I can't currently discharge my duties, and so he sends a letter to that effect, and for so long as that letter is extant, the vice president serves not as the president but as the acting president. And then there's the much more controversial section 4 procedure, which is a mechanism for removing the president temporarily without his involvement.
Harry Litman [00:24:55]: This is the thing that came up with the, y’know, in March of 2017 after Comey’s firing and Rod Rosenstein invokes. So this section 4 mechanism is actually only a temporary removal.
Steve Vladeck [00:25:12]: Well it depends on how it works, right? So the way the section 4 process works is it starts with a letter from the vice president and a majority of the cabinet that says we believe the president is unable to discharge his duties, and upon the filing of that letter the vice president immediately becomes acting president. And I want to stress acting president Harry because you know the vice president does not become president until the office is actually vacant. So the vice president and the majority cabinet sends a letter, but the president can end a counter letter, and that's when all hell breaks loose. So it’s up to congress to decide whether to remove the president. And even if congress sides with the vice president, that doesn't actually remove the president from office, it just means that the vice president continues to serve as acting president. So the way that the 25th amendment is structured, the president is still the president so long as he is physically holding the office even if he’s incapacitated, whether the vice president is allowed to serve as acting president depends on whether the section 3 or section 4 procedure has been followed.
Harry Litman [00:26:20]: But now, so is there anything in between? So we have a legal protocol for actually removing the president even temporarily, anything else? Anything like, any legal mechanisms that say he’s getting really sick, or is basically an on/off switch for acting president Pence vs President Trump?
Steve Vladeck [00:26:45]: It’s an on/off switch. And the idea is, and just to be clear i mean the idea is the president being sick is not the realm of consideration, the question is whether the president is unable to discharge the duties of his office, which i think is much more meant to be about his physical and mental capacity than about like, is he bedridden. As long as Pence is there and fine, we don't have to get into the messier authority question of who’s behind Pence. Cause the 25th amendment doesn't actually speak to what happens in cases in which both officers are disabled, and that's where we get into the much messier discussion about the presidential succession act of 1947.
Harry Litman [00:27:32]: Now I remember when this came up before, is it Pelosi or is it the majority leader, etcetera.
Steve Vladeck [00:27:41]: Just to be clear, right, just since we’re here and we’re all dressed up and we might as well do this quickly.So, the presidential succession act comes into play if and only if both offices are vacant, or that’s to say there’s no president or vice president, not just that they’re disabled. And the statute at least is abundantly clear as to what happens then, right, that it’s Pelosi, and then followed by not the majority leader of the senate, but the president pro tempore of the senate Chuck Grassley, and there’s a long running academic debate about whether that statute is constitutional, I just don’t think a court in the middle of that kind of crisis is going to take that question seriously.
Harry Litman [00:28:20]: I agree. Alright, so we can set that question to the side and see this as the kind of extreme legal mechanism that at least —
Steve Vladeck [00:28:30]: — ensures some continuity of governance.
Harry Litman [00:28:31]: Yeah, ok. Now, you raised the election, so let's talk about the election.
Steve Vladeck [00:28:38]: So, I mean, it’s worth stressing that plenty of people have already voted, right so it’s not like the election is 31 days away, the election is underway. So here’s where it gets really messy, and here’s where if folks are interested I would really refer you to the election law blog run by our friend Rick Hasen, which has some really great resources on this. But heres the really short short version, it really varies by state. So there's no mechanism for removing someone from the ballot who is sick. As long as Trump is, I don't mean to be macabre, but as long as the candidate is alive, nothing happens. I mean obviously it might affect how people vote, but it won't actually change the substance.
Harry Litman [00:29:16]: But even though it's by state, because there’s no state that so provides?
Steve Vladeck [00:29:20]: There's no state that says, the middle of the election the party can sort of dump someone who’s living. All of the states that have these kinds of bail out provisions are all focused on cases where the candidate has died. Folks might remember, was it Mel Carnahan? RIght, the senator, the guy who wins the missouri senate race after he died? So some states would allow the state party to identify an alternative candidate up until some deadline before the election day, who then replaces Trump on the ballot, some states don't. Some states allow the certification of one person as the winner of the popular vote in the state to be superseded by a successor if that person dies, where the state basically tells its electors to vote for instead of Trump, I don’t even know who it would be, but the person who the RNC says is now the nominee. Some states don't. but the one thing that is for sure, Harry, and the one thing where there’s no debate at all is once the electoral college votes, it's up to the new congress to certify the results of what the electoral college says, and that requires the consent of both the house and the senate. So the congressional session begins on January 3rd, and by statute the electoral votes are counted in a joint session of the house and senate on January 6th.
Harry Litman [00:30:51]: So basically, if Trump is alive on November 3rd, there may be plenty of political permutations, etcetera. If on the other hand he is alive, let’s say he wins the election, but were to die between then and January 6th, then there actually might be tussles, or is it, as a practical matter, extremely clear that the next president of the United States is Pence?
Steve Vladeck [00:31:17]: So it's not clear legally, in that scenario, I mean the January 6th date looms large there, because if Congress has the opportunity to choose someone other than Trump, right, they’re not bound to choose Pence. I think politically, Harry, they would. But if something were to happen between the 6th and the 20th, I mean just cause we’re playing on all the hypotheticals, once Congress has certified the results of the election, nothing can change before the 20th. And so at noon or 11:58 on the 20th, Pence would be sworn in again to his second term as vice president, and then at noon he would become president by section 1 of the 25th amendment.
Harry Litman [00:32:05]: Wow. Now let me ask you this, and this is more terra incognita and sort of more speculation, have you thought about the implications of the virus for the nomination or confirmation hearings of justice Barrett?
Steve Vladeck [00:32:22]: So I will confess that I have, because I’m a nerd and this is what I do…
Harry Litman [00:32:27]: By the way, Mike Lee has just tested positive, so there'll be one fewer senator there.
Steve Vladeck [00:32:32]: I mean Harry, that’s interesting because of course the senate would need a quorum to function, and the democrats, if we get to a point where the republicans can't muster enough bodies, the democrats could deprive it of a quorum by not showing up.
Harry Litman [00:32:46]: By the way, just let me add to that, that's a 50/50 vote, that’s not something that Pence breaks ties on.
Steve Vladeck [00:32:51]: Yes the vice president cannot create a quorum that does not otherwise exist. So, here’s the short version, there's actually a supreme court case squarely on point, for the legal point here, which is that a supreme court justices position as a justice is not actually finalized when the senate votes their confirmation, right? It doesn't actually become finalized until their commission is signed.
Harry Litman [00:33:19]: Yes, Marbury v. Madison.
Steve Vladeck [00:33:21]: Marbury v. Madison, and that is literally the whole thing of Marbury v. Madison. And so what that means in practice is that you could imagine a preposterous series of events where by the time the senate confirms a nominee, the opposing party now — the speaker of the house from an opposing party is now the acting president. And in that scenario, the speaker is under absolutely no obligation to sign the commission. And that’s just settled [unintelligible]. And so, is it at least possible in a crazy, farfetched hypothetical that a supreme court nomination could fail, because even though the senate approved it there was a change at the top of the executive branch while the nomination is being bandied about and the president no longer wants to sign it, yes. I mean, one of the things we thought about, this came up in the Merrick Garland scenario, where folks were talking about if Hillary won, right, McConnell might try to rush through the Garland confirmation because he feared that she would appoint someone even farther to the left. And that was never a possibility because lame duck president Obama would be under no obligation to sign the commission of his own nominee to the supreme court.
Harry Litman [00:34:33]: Thanks very much Steve Vladeck. .To listen to the whole conversation with Steve, also our conversation with Frank Figliuzzi on how Trump's diagnosis is likely to impact national security, and our conversation with Dr. Carl Bergstrom on Trump’s medical conditions and concerns, you can go to our Patreon site, patreon.com/talkingfeds , where all three conversations will be free until October 8th. Normally, as you know, that’s for subscribers only, but given the importance of the news we’re making them available to all for the next several days.
Harry Litman [00:36:23]: Alright, I'd like to move now to the manifold political implications here. Let's start with the president. There's a op-ed I think in the Post today saying, Oh, here's his big chance to be a sympathetic figure.
On the one hand, he really seems like completely chastized for his own cavalier attitude toward the virus and almost being triumphant about being careless.
On the other, here's the president of the United States, our commander in chief and he is pretty sick. And you rally around the flag. How do you see this kind of playing for him?
Michael Schmidt [00:37:02]: I think we just don't know. It's just so uncharted and unusual. And Trump is just such an unusual political character that trying to predict how people will respond to this, and whether there would be sympathy for him, someone that very few people have had sympathy for, besides his base throughout his presidency, it just seems incalculable. And the fact that it comes at the heat of the political moment of his presidency just makes it all the more harder to sort of play out in, in your own mind. So, I don't know. And I know that's not really satisfying, but it just, Trump is just so unusual. And he has defied so many of the normal laws of gravity that we thought existed in Washington, that who knows and who knows how he could use an event like this to his own advantage.
Harry Litman [00:37:54]: On the one hand, he is the winner. You're going to be sick and tired of so much winning, and this is not winning. On the other hand, he's the man of grievance who everybody picks on and he can't get a break. And that's a big article of faith at his rallies too. And this at the vertex of both of those themes.
Michael Schmidt [00:38:13]: Yeah, but now he is the victim of something that he basically said did not exist in the form that it does, so figure that one out.
Laura Coates [00:38:22]: I mean in terms of the, the brand as well. I mean, I do think that his ability to be sympathetic is going to largely be in the way in which he deals with it going forward, the way in which he characterizes the illness, the way in which he could use this as an opportunity to go from consoler in chief, because now that it's happened to him, now the epiphany could set in.
However, I do think about that moniker Teflon Don. And I do think about the recent comments he's made that some criticized as being almost a eugenics based argument. When he made comments about the strength and the genes of people as a way for them to be able to withstand this. And I'm thinking about Vladmir Putin's comments today, he alerted through that official telegram saying, you know, I know that your agility and, basically your composition will allow you to ride out the storm.
I almost tend to cringe thinking about that moniker of Teflon Don, because I'm so concerned that whatever his individual experience will be with COVID-19, that will become some sort of litmus test on how others are sympathetic or empathetic towards other people. I don't wish that it's going to be something obviously fatal or wish that it's going to be horrific for the president.
But I do believe that based on the way that he has been able to attach marionette strings to a whole host of people who think this has been a conspiracy theory all this time, I could foresee people looking at his experience and saying, okay, well, if it's only mild for him, that must be the way it is for everyone else.
Or if it's really bad for him, and that must be the way it could be. And so I wonder how much even he can be in control of the sympathy, because once you ring that bell, it's hard to unring it. Once people believe that one person can be the litmus test or one person can determine whether it's a grand conspiracy or not, he may be on a runaway train and not the one Biden's campaigning on.
Harry Litman [00:40:18]: Right.
Norm Ornstein [00:40:19]: So we know that there are going to be a lot more people surrounding the administration who are likely to come down with COVID. The Barrett event appears to be a super spreader event, and the video of Mike Lee going around and hugging all kinds of people who did not have masks.
Some of his colleagues there, what we saw likely happen and with Air Force One, and I'm already seeing on Twitter, some of his followers with a kind of conspiracy, why is it only hitting Republicans? So, it's going to be like, this is not because they flouted all of the rules and norms. It's going to be something that Democrats did to try and bring down the president.
I don't think many others are going to see that. it's obviously ridiculous, but what we don't know now is how a campaign plays out. We may not have more debates. The next debate was supposed to be a town hall, it was going to be a very different dynamic. Who knows if he'll be able to do that, what will this do to the enthusiasm of his supporters if they're starting to think that maybe they're not voting for Donald Trump, but voting for Mike Pence? What will happen with Biden and the nature of his campaign?
He's now suspended negative ads, but you know, we're going to be in a different world for the next week or two or three. I can't see a lot of people who are not Trump supporters feeling sympathy for him because he's a victim here. He is not a victim in most of the ways in which we would characterize it.
But I think Michael is right. We're in uncharted territory here in terms of how all of this plays out psyche and with a campaign. One thing that may happen, if he were mildly symptomatic, stuck in the White House and did nothing but tweet for two weeks, we would see many more attempts to incite the proud boys and others to get out there and maybe even have more violence. If he's unable to do that, and he's not using that trigger, maybe that alters some of the nature of the voting taking place over the next few weeks.
Laura Coates [00:42:14]: One of the odd things about this, of course, people have already started voting.
Harry Litman [00:42:16]: Yeah. The election’s on already.
Laura Coates [00:42:19]: The election is ongoing. I mean, it's right here. Even before he was diagnosed, people had voted and he has obviously had a lot to say about the integrity of mail-in invalid much to my chagrin as a former voting rights attorney and civil rights, but the idea of, the people have already begun. You almost wonder how much impact could it have because some people have already cast their ballots, maybe even believing they were voting for Trump.
And may ultimately have to reconcile the question you raised, Norm about, well, what will this mean if it’s Pence for any moment in time or what will it mean if it's Biden at any point in time? And so, it's almost ironic that the very thing that he has been trying to downplay, through his own admission to Bob Woodward and others figures, has already preempted the ability of this to have an impact on people who've already voted.
Michael Schmidt [00:43:07]: But the other thing is, is that he has so many self inflicted wounds that if you were to be down for two weeks and just sort of recovering. He can almost benefit from that because he's not out there doing the things that so undermine himself politically, and people have said that like, if he just locked himself in the residence for two weeks and just didn't say anything, there may be more confidence in his behavior or his abilities.
Harry Litman [00:43:34]: Now, of course, as all of you guys say, if he does this for two weeks, if he does this for three weeks, we're talking about 50%, 75% of the time between now and the election. All this is happening in the last five minutes of the game, which is another complicating factor. Especially if you accept the conventional wisdom about the dynamic, which is that he's got to do something to reverse the trend or he is going to lose come November.
Laura Coates [00:44:04]: As Michael was talking about, the idea of the very thing that the debate moderator Chris Wallace wanted to do was muzzle the president.
And a lot of people were speaking about this idea of what hurt him most was the idea and the debate, according to polling and people's commentary on it, was that he was continuing to create these self-inflicted wounds to the he point that his candidacy and campaign became like Swiss cheese. And it was on top of, of so many other things he'd already done.
But I have to say, we're talking about a very unconventional president who has bucked a lot of norms in terms of the political process, but even with the idea of listening to experts and deferring to their judgment about COVID-19, he has not adhered to these. So I have to say, I am reluctant to even be convinced that he will in fact abide by what is supposed to happen over the next two weeks.
I don't know if we really can say here with such absolute confidence that the same person who has not abided by or conveyed this to the general public would say, you know what? I think I'm going to quarantine myself for 14 days. I'm not going to be on the campaign trail about 30 or so days, if we're a very consequential election in my life, I have doubts whether he will actually abide or continue to buck the experts in the system.
Michael Schmidt [00:45:23]: If Trump is feeling better on Wednesday, does he say, gotta go back out on the trail! I mean, I know that sounds a little farfetched, but if he was ok on Wednesday, do you think he would really say like, I'm going to sit around for another two weeks as my political future is, you know, in the balance?
Laura Coates [00:45:40]: No, I don't think he will. I, and I don't say that to be dismissive of the gravity of what we're talking about. I see this as somebody who, as Warren was saying as you've been saying, as Mike has been saying, as the world has been saying, this is somebody who has made comments, even in Duluth, Minnesota, my home state, where he was tossing out hats to people before we knew about his diagnosis, where he made comments about how Democrats would like to continue the shutdown because they care more about politics than lives. The idea of politicizing COVID-19, it's been a topic from Florida to Seattle, it's been a discussion. And so I think that for somebody who has said he believes that this is a politicization attempt and a political attempt to try to undermine his candidacy, his presidency, his impact on the economy.
I don't think it's very farfetched to presume that he would be extraordinarily reluctant and perhaps even refuse to just sit by the wayside, even if it means that it's contrary to science. We've seen that he's gone contrary to science and I didn't know if the task force members who are these learned individuals with such expertise have even been consulted into what's happened to this point with the president.
Harry Litman [00:46:57]: Norm, do you see any way he can use this to try to postpone the election date?
Norm Ornstein [00:47:03]: So, well first, no. He has no role in that. Of course that's never stopped him before. If he called for it, it would require Congress passing a law, which will not happen, but let me just respond to my fellow Minnesotan.
Laura Coates [00:47:18]: Yeah, sure!
Norm Ornstein [00:47:19]: One thing we have to keep in mind is the comment to Bob Woodward. Which was stunning that this wasn't just an ignoramus who was completely casting aside facts and science, he knew perfectly well and then turned it into his own advantage.
But he is supremely interested in his own self health and worth. So if doctors told him privately, if you go back out on the campaign trail that could kill you, I doubt he will do that. If he decided himself and maybe getting advice from Dr. Bornstein or Ronny Jackson that he's okay, and he decided to take it, he would ignore what Anthony Fauci or anybody else said.
I agree, but let's keep something else in mind. What we know of the science here is once you get tested positive, the worst symptoms usually appear five to seven days in. We don't know exactly how many days in he is, but it's more likely if he's not doing well now that he's going to get worse in the next few days.
And let's also keep in mind that a guy of his age, who is at minimum obese and very possibly morbidly obese, who in the past has been unable to walk 50 yards without getting in a golf cart, that the mortality rate for people in that setting is not 1% or a half of a percent. It's nine or 10%. That could lead us into truly uncharted territory.
And of course we know, one of the things that I've written in the past is all of the different scenarios. What happens if a presidential candidate dies at certain stages of the campaign? After you can't reprint ballots, before you've had the election itself, after the election before the electors are chosen, after the electors are chosen before they vote, after they vote before Congress convenes, all of these different scenarios offer different possibilities and we could be in a territory where we're going to have to bring back some of that stuff and consider it.
Harry Litman [00:49:16]: Yeah, it's so true. And as Steve Vladeck just explained in his Sidebar, depending on the day — November 2nd, November 4th, January 6th, January 20th — you get all these different and sometimes conflicting scenarios. I want to talk just briefly about the potential political consequences, if any, for the Amy Coney Barrett nomination.
How do you see this? I think we've all admitted through this hour, we don't have the crystal ball and it's especially cloudy here, but what are some of the things that you consider when you think about the combination of this news and the confirmation hearings scheduled to begin on the 12th of October. Is this in some jeopardy and what's the dynamic here?
Norm Ornstein [00:50:08]: So, one, she tested positive before, but you can get it again. So we have that phenomenon. We know that I'm sitting at the Rose Garden ceremony, you not only having Mike Lee without a mask, you had Josh Hawley, Ben Sasse, who had a half mask on and a bunch of other senators. And then after he was symptomatic, Lee went to the hearing and most of the senators, including some Democrats, including Diane Feinstein, were not wearing masks and he was shouting. We could see many senators, many senators could come down with it. If we got sicker and couldn't show up for a vote, it would only take one more Republican in that setting before you wouldn't have the 50 votes that they needed to actually confirm Barrett.
And they may have to postpone the hearing, even though Lindsay Graham said he won't, we could end up in a setting where they aren't able to get a vote until after the election. This really does create a problem for them, a potential problem. They're going to try and jam it through obviously as fast as they possibly can, but it may not be possible.
Michael Schmidt [00:51:11]: I think what Norm is saying, is that for this confirmation to get through before the election, everything has to go perfectly for them. Everything has to line up and there's some chance that everything could line up, but now you've taken this big factor and you've put it in the mix. And the chances of that has to be smaller because you got more stuff at play here.
Well, okay, so Mike Lee. If Mike Lee has it today and he has to quarantine for two weeks, that means that, does he miss the first hearing? So if he's the only one, is he healthy enough to come and go? Does it matter if he's at a hearing? Probably not, but there's only so much time here. And the more variables, the less likely it is to happen.
Laura Coates [00:51:59]: Well, you know, the other thing we're talking about scenarios that kick the can down the road, but they don't actually remove the can. I mean, this is the idea of whether she'll be confirmed prior to the election or whether she'll be confirmed perhaps prior to an inauguration, even if there's a different president, of course.
I mean, this is a scenario where, although much to my chagrin about the judicial selection process here that said to the world, we've got all the confirmation votes before we even knew who the nominee was, talk about putting the cart before the horse. I think we have a scenario where I think Democrats are concerned that there is an inevitability of her being confirmed at the Senate, but I think it does have an impact on which senators even, if the Senate somehow flips, that new class does not automatically come in until January, even if you have that Senator, if he's elected out of Arizona, Mark Kelly.
You know, I think that for a lot of people, this idea of the wheels being set in motion has a very big impact them the way they don't see a lot of perhaps optimism and being able to change the nominee, even if just delaying it could be an issue, but I don't see this particular issue being one that's going to remove her from the nomination process.
Harry Litman [00:53:21]: All right. And that leads us directly to our final feature, because we're out of time of Five Words or Fewer in which we each have to answer in five words or fewer, the question from Julie Jones from Twitter is, if more GOP senators become positive and there aren't enough votes to confirm Barrett, what would happen? Five words or fewer, do you wanna start, Norm?
Norm Ornstein [00:53:46]: We don’t have a clue.
Michael Schmidt [00:53:50]: It'll go to the next president. Goes to the next president, I can’t count.
Harry Litman [00:53:55]: Goes to next president. How's that?
Laura Coates [00:53:58]: I mean, I'm going to say, Democrats will very much rejoice. There you go.
Harry Litman [00:54:07]: I'll say. McConnell tries to legislate solution.
Thank you very much to Laura, Norm, and Michael, and thank you very much, litneers, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts, or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other feds related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts.
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Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Don Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Thanks very much to professor Steven Vladeck for our version of the Sidebar today and the legal implications of Trump’s possible incapacitation. Our gratitude as always to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
