Testing positive: Will Trump’s presidency be a casualty of COVID-19?

President Trump’s presidency from the beginning has been two-headed. Few citizens approve of his prideful, long-winded demeanor; many citizens, however, strongly welcome his efforts to get a better deal for America in all things. In his 2017 inaugural address, the president observed:

“At the bedrock of our politics will be a total allegiance to the United States of America, and through our loyalty to our country, we will rediscover our loyalty to each other. When you open your heart to patriotism, there is no room for prejudice. The Bible tells us, ‘How good and pleasant it is when God’s people live together in unity.’”

Those are unusually fine sentiments. In last week’s presidential debate in Cleveland, however, President Trump’s accomplishments and aspirations were eclipsed by his boorish behavior, perhaps reflecting what was at that time unknown even to him — namely, his COVID-19 infection. Many watching the debate were stunned by the president’s over-anxiousness. Was it a bad night, or Democrat Joe Biden’s cajoling designed to provoke? To use a Trumpian word, what happened in the first debate was “sad.”

Those who know President Trump well have told me that his use of the word “sad” is poignant because it reveals the extent of his personal frustration and disappointment, which he largely keeps hidden from view. Remember his axiom: It is loyalty to the nation that promotes loyalty to each other. Donald Trump sees himself as an aspiring patriot. His detractors seldom do.  Tempered by his illness, perhaps sympathy will allow more Americans to credit the president’s vision of standing strong for U.S. citizens, especially those of very modest means. 

There is a case to be made in President Trump’s initiatives, foreign and domestic.

He freed us from an Iranian deal that delivered little at enormous cost. He continues to return troops from distant battlefields where putting American lives at risk never made sense. He is keeping his promise to rebuild military defense while resisting the siren song of prolonged intrusion into historically complex and religiously sensitive grudge fights among foreign powers. His Middle East efforts are promoting peace through economic investment. Domestically, his efforts to personally chair decision-making meetings have demonstrated a work ethic at an unprecedented level of presidential interest and supervision.

So what now, given the pandemic? President Trump’s efforts to understand and curtail the deadly virus, of course, have been subject to enormous speculative second-guessing. The usual critique: The president should have locked down the entire nation immediately with a federal decree. Beyond being unrealistic, this criticism overlooks the absence of medical consensus at the time. Yes, there would have been uniformity in that, but it easily could have been an error. Even infectious disease expert Dr. Anthony Fauci understated the risk early on and said face masks would be of little help. The president is often berated for interceding in ways that overextend executive power. I have made this criticism myself, especially where justice matters envision a president having less involvement to promote impartiality. 

With the pandemic, however, President Trump activated governors of every state. Some of our most revered presidents (notably, Thomas Jefferson) praised this kind of federalism, but Trump made it work. Our Founders could not anticipate COVID-19, but they did prophesy difficult problems that would be advantaged by dividing federal and state responsibility. It takes more work, but with this virus affecting different parts of the country differently, it is far wiser to allow the states to compete for solutions. If mistakes occur, they can be limited in space and time. The mainstream media reflect little of the president’s respect for the constitutional structure, but hopefully the protocols established and scientific experiments being undertaken will keep us — including President Trump and his family — from succumbing to a novel virus that was recklessly introduced to the world.

President Trump sought to devote his presidency to the re-enlivening of the American spirit with a return of power to the people. Much of that spirit was derailed by our law enforcement and intelligence agencies with the Russia collusion investigation, and evidence of Russia assisting his campaign over that of Hillary Clinton. Did Trump or his campaign know that? Many people believed so, but former special counsel Robert Mueller asked his task force to narrowly answer only whether there was a level of interaction that would run afoul of Title 18 of the criminal code.   

Were it not for the need of the next president to recognize the challenges of robotics, artificial intelligence, globalization and ways in which the free market can be utilized to reconstruct the economy, and to affirm human rights, such questions might be pursued. But the cause of the failure of the FBI, CIA and others must be handed over to government scholars who can distill how those doing an investigation came to erroneously believe that it also was their role to pass judgment. 

Speaking of judgment, President Trump, like every president before him, has appointed men and women to the bench whose views reflect his legal perspective. His latest Supreme Court nominee, Judge Amy Coney Barrett, is no exception. She should be confirmed without delay or intrusive and constitutionally problematic inquiries into her faith. Ms. Barrett, a former law school student of mine, is superbly qualified, and those who yearn to impose term limits on the judiciary or to pack the bench should recall the experience of Franklin Delano Roosevelt who, despite winning by a landslide in 1936, was thoroughly admonished for attempting a similar maneuver.  

Go down that road and  an independent court is rendered incapable of preserving the rule of law. The Democrats who started the partisan war over judges in the 1980s should cease and desist, or just “shut up,” as Mr. Biden bluntly barked at the president during their debate. Give Judge Barrett appropriate review, but stop asking nominees to prejudge cases — that mischaracterizes judges as lawmakers, rather than interpreters.

COVID-19 always had potential to influence the election, and the president’s diagnosis could change the race. The political polarities of the left and right remain, and those firmly on one side or the other won’t be moved, but sympathy can open minds. Just as the pandemic has caused many to reconsider how they spend their days, an undecided voter testing positive may give a sympathetic ear to a president joining the lines of those at risk. Whether President Trump’s debate performance was a product of illness, I do not know. But as Agatha Christie once observed, “Through it all, I still know quite certainly that just to be alive is a grand thing.”

Douglas Kmiec is professor emeritus of constitutional law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel during the Reagan and George H.W. Bush administrations. Follow him on Twitter @dougkmiec.