Trump Seems to Realize He Cannot Have a Third Term

Donald Trump has talked on and off about getting a third term. He has already defied the Fourteenth Amendment (birthright citizenship), so why not defy the Twenty-Second Amendment (two terms) as well? Steve Bannon has said he has a secret plan, but Bannon loves to own the libs and get them into a tizzy, so he may be talking out his rear end. Certainly, on the way to South Korea, Trump said it is perfectly clear he can't run again. Literally: "Based on what I read, I guess, I'm not allowed to run. So we'll see what happens."

Trump really wants a third term. Badly. He knows that even if no Democrat runs on a platform of retribution, the winner will be under enormous pressure to put him on trial and get a conviction. There are probably Democratic lawyers already compiling a list of possible charges. It has to be an actual statute, though. Generally abusing his power and being mean isn't good enough for a conviction. By squeezing lower-level officials, it would probably be easy to collect plenty of testimony to prove most crimes, if needed. If the Supreme Court voided a conviction on the grounds that the president can do anything he f**king wants to do, the president could declare Trump to be a terrorist and ship him off to Guantanamo Bay. Alternatively, if the Democrats have the trifecta, they could establish a carve-out to the filibuster for expanding the Supreme Court, expand it, charge Trump with something different, and try again. Additionally, there could be hundreds of civil lawsuits against Trump that could bankrupt him.

Trump knows that the White House switched parties in 2016, 2020, and 2024. People are very unhappy with the direction of the country now, and that could be an omen that it will switch again. Democrats are desperate to end the Trump era and will likely take into account "probability of winning" when choosing their own nominee in 2028. During the primaries, pollsters will probably run polls pitting each Democrat against J.D. Vance and other potential Republican nominees and those polls could dominate the primaries. "I can beat Vance" would be a pretty strong argument for any Democrat.

Note that there are at least one or two other potential routes to a third term besides being elected president. First, the GOP ticket could MAYBE be Vance/Trump. If the ticket wins, Vance could resign, making Trump president. Then Trump could nominate Vance to be veep for being such an obedient lapdog. However, there is a whole cluster of flies in the ointment here. The Twelfth Amendment includes the sentence: "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." Is Trump "ineligible to the office"? He is ineligible to be elected, but no Amendment addresses his eligibility to serve. If five Supreme Court justices rule that while he is not eligible to be elected, there is nothing there about serving, he's got his third, fourth, and fifth terms if he lives long enough.

A second problem is that Vance can't be trusted. Suppose that in the afternoon of Jan. 20, 2029, Vance were to call Trump and say: "I've changed my mind. I'm not resigning." Then Vance is president. End of story. Another guy who was pretty much as slimy as Vance is, namely Aaron Burr, almost became president under similar circumstances in 1800. A third problem is that people are not happy with the direction of the country. Despite the Democrats being in disarray, they could nominate a popular candidate and he or she could win. We think it will be a "he," though, since the "she-type" candidates are 0-2 and we suspect Democratic primary voters will decide this is not the time to take big risks. These issues aside, Trump has said the VP-route is too cute for him, making the first time that the words "Trump" and "cute" appeared in the same sentence.

If the veep route is out, there is another, more-convoluted, route that is likely legal. On Jan. 3, 2029, Trump could be elected speaker of the House. There are no constitutional barriers to that, not age, not even nationality. If the House elects Prince Louis (7) as speaker and mom and pop agree, then it is Speaker Louis. Then, on Jan. 20, 2029, both the newly elected president and vice president resign, making the speaker president. Again, no amendment bans anyone from serving a third term, just getting elected. Of course, this scenario requires Republican control of the House and a president and vice president who are willing to play ball. A ticket of Ivanka Trump and Jared Kushner (two for the price of one!) or Ivanka and Donald Trump Jr. would probably play ball, but could they get elected if the Democrats field a serious candidate? It's unlikely, but is a theoretical possibility.

That said, there are flies in the ointment here, as well. First, it would obviously require a Republican majority in the House, which might happen in 2029, but might not. Further, if the speaker becomes president, they are only "acting president," and they have to give up the job once a VP is confirmed. So, Trump could only hold onto the office in this scenario without a VP, putting his 80+-year-old heartbeat as the only thing between the next Speaker, or the President Pro Tempore of the Senate, and the presidency. If the House were to change majorities, or the Senate were to be in Democratic control, the red team could end up handing over the presidency to the blue team under these circumstances, were Trump to go to the big, golden toilet in the sky.

Finally, another option is repealing the Twenty-Second Amendment before 2028. Good luck with getting 67% of both chambers of Congress and then 38 states on board with that. (V)

Judge Rules that U.S. Attorney in L.A. Was Not Legally Appointed

Donald Trump has made enormous use of his power to make temporary appointments, often ignoring statutory limits on how long a temporary appointee can serve. He did it with Alina Habba in New Jersey and with Sigal Chattah in Nevada. And now he's done it again in Los Angeles with Acting U.S. Attorney Bill Essayli. He keeps doing this so he can name totally unqualified toadies that the Senate would probably not confirm.

On Tuesday, U.S. District Judge Michael Seabright disqualified Essayli on the grounds that he has served more than the legal maximum of 120 days. Just before the 120 days ran out, AG Pam Bondi fired him and then named him first assistant U.S. Attorney, because in the event of a vacancy, the first assistant takes over. Seabright saw right through this clumsy ruse. His opinion read: "Simply stated: Essayli unlawfully assumed the role of Acting United States Attorney for the Central District of California. He has been unlawfully serving in that capacity since his resignation from the interim role on July 29, 2025. Essayli may not perform the functions and duties of the United States Attorney as Acting United States Attorney. He is disqualified from serving in that role."

However, the judge didn't go all the way and tell Essayli to scram. He allowed Essayli to continue serving as first assistant U.S. attorney. As long as the top job is vacant, Essayli can continue to work for the DoJ prosecuting people. He just can't call himself a U.S. attorney. So he has to go print up new business cards with a different title.

The specific case that triggered the ruling was one in which three defendants wanted their cases tossed because Essayli wasn't legal. The judge ruled against tossing their cases because additional assistant U.S. attorneys signed all the paperwork. So even if Essayli had no authority, the others did.

This case could have ramifications for two very high profile cases. The indictments of NY AG Letitia James and former FBI Director James Comey were signed by only Lindsey Halligan, who was parachuted into the job after the 120-day limit on temporary appointments ran out. Both James and Comey are going to argue that Halligan was not the legal U.S. attorney for the Eastern District of Virginia and thus the indictments are not valid. In Comey's case, the statute of limitations has already run, so a new indictment is impossible. (V)

Hegseth Moves to Fire Defense Workers

As we noted yesterday, U.S. District Judge Susan Illston has issued a preliminary injunction barring the administration from firing government workers during the shutdown. Will that deter anyone? No, it just means a bit more paperwork. In particular, on Sept. 30, Undersecretary of Defense War for Personnel and Readiness Anthony Tata signed a memo ordering HR personnel to "act with speed and conviction" to terminate poorly performing civilian employees of the DoD DoW. This memo deprives workers of their rights, speeds up the process, and makes the criteria for firing someone whatever the boss wants. One defense civilian said: "Looks like we are all 'at will' employees now."

Secretary Pete Hegseth has already been firing high-ranking people accused of being "woke" right and left (OK, make that just left), but the memo could greatly accelerate firings, especially lower down. It could act as a work-around for Illston's ruling since nominally employees will be fired for "poor performance" rather than arbitrarily. Also, these workers will be fired one-by-one, not a mass firing, so it might evade the rules Illston laid down. In addition, the memo allows for managers to be fired if they fail to fire people who are "poorly performing"—for example, they don't want to follow illegal orders. Prior to the memo, poorly performing workers were first given instructions on what they had to do to improve their performance and then given a chance to improve. That is all gone now. Sean Timmons, a managing partner at Tully Rinckley, a law firm specialized in federal employment and military law, said: "They are gutting federal employee protections significantly." The Pentagon has already cut about 60,000 people, or about 8% of its workforce. Timmons thinks Hegseth will use the new memo to get rid of more people not with the program.

Hegseth is not hiding his idea of "poorly performing" at all. He ordered the Pentagon to fire disloyal civilian workers—that is, workers who don't subscribe to Donald Trump's agenda. Note that the usual (and legal) definition of "poorly performing" is different from "not actively working to support the president's agenda." (V)

The Fed, Flying Blind, Lowers Interest Rates

Normally the Fed governors look at all the available data, stuff it into their models of the economy, and decide what to do with interest rates. That wasn't possible at yesterday's meeting of the Fed board of governors. First, Donald Trump fired the longtime head of the nonpartisan Bureau of Labor Statistics, Erika McEntarfer, in August, because he didn't like the numbers the Bureau was producing and wanted a toady who would produce numbers he liked. He nominated a replacement, E.J. Antoni, but he was so universally panned, Trump had to withdraw the nomination. So BLS doesn't have a proper head to make sure all the data is collected properly and the numbers published are correct.

Second, the shutdown has stopped a lot of the raw data collection, so the Fed really doesn't have a good idea of how the economy is doing. Nevertheless, it cut rates by 0.25% yesterday and is hoping for the best. Inflation is starting to come back, but unemployment is also rising, so the Fed is flying blind here without good data. It is hard enough to get it right when there is data, but much harder when there isn't.

If Chair Jerome Powell & Co. are guessing wrong and inflation is a bigger problem than unemployment, cutting rates was the wrong thing to do because lower interest rates invariably increase inflation even more. That could hurt the Republicans next year. Powell noted that there were major arguments at the meeting, as not all the governors agreed on what to do. He also indicated that no one should make any assumptions about what the Fed will do at its December meeting. If the shutdown is continuing and there is no data at all, it is hard to imagine the Fed will know what to do. In that case, doing nothing might be the wisest course of (in)action. (V)

Red States Are Champing at the Bit to Cut Up Majority-Minority Districts

From the oral hearing earlier this month, it seems likely that the Supreme Court will gut the last bit of the Voting Rights Act. After all, in the modern era, the Supreme Court, not Congress, gets to decide what's the law. In the expectation that indeed the VRA will go the way of the dodo, a number of Southern states are already working on plans to gerrymander their maps even more, to make sure no district has enough Black voters to elect a representative. Since most white voters are Republicans and virtually all Black voters are Democrats in the South, it's not hard to do. If a state is 70% white and 30% Black, all that is needed is to make every district 70/30 and bingo! It is a bit trickier than that because Blacks tend to cluster in cities, but with some creative mapmaking, it is doable to make every district majority-white.

They are not the slightest bit shy about it, either. Lt. Gov. Pamela Evette (R-SC) said: "If we could have a clean sweep, I would love that." That would mean eliminating the seat of long-time Rep. Jim Clyburn (D-SC). Rep. Ralph Norman (R-SC) is running for governor and is even more aggressive. He doesn't even see the need for waiting for the Court. Just do it now.

Democrats don't like it but have little power to prevent it. John Bisognano, president of the National Democratic Redistricting Committee, said: "Many states across the South are already licking their chops to try and prepare to racially gerrymander maps as quickly as possible."

Florida will be even worse than South Carolina. There are currently eight Democrats in Congress from Florida (vs. one from South Carolina). Gov. Ron DeSantis (R-FL) had a big hand in drawing the current (wildly gerrymandered) map, so he has some experience at this. He's game for another round if the VRA goes by the wayside. One problem is that Florida's Constitution prohibits drawing maps for partisan gain. On the other hand, DeSantis appointed five of the seven Florida Supreme Court justices. Charlie Crist appointed the other two, back when he was a Republican. A second, more serious issue, is the timeline. Unless the U.S. Supreme Court rules very quickly, it may not be possible to pull off a new gerrymander in time for 2026.

Texas, Missouri and North Carolina have already re-gerrymandered their maps this year. It is still pending in a few states, and if the VRA is killed in November, the dam will break and a dozen Republican states will get going on it. (V)

An Arizona Election Will Test Whether Turning Point USA Has Staying Power

Since Charlie Kirk was horrifically assassinated in September, the organization he founded, Turning Point USA, has been run by his wife, Erika. It had previously been very strong in Arizona, but the new leadership will be tested for the first time next week. In the city of Mesa, Councilmember Julie Spilsbury is being targeted by TPUSA. Although Spilsbury is a lifelong Republican, she is not a MAGA Republican. She supported Kamala Harris last year, and that was beyond the pale for TPUSA. The group collected enough signatures to force a recall election for her. That will be on the ballot next week.

Spilsbury said: "I feel like Turning Point is on a mission to flip all the nonpartisan city councils and school boards into partisan elections, and they want everyone to think the same way." In the election, TPUSA favorite Dorean Taylor is running against Spilsbury. There are many "FIX MESA VOTE TAYLOR" signs in town. Tyler Bowyer, the TPUSA COO, tweeted: "JULIE SPILSBURY was all smiles trying to put Commie-la Harris into office." How this election turns out could give an idea whether TPUSA still retains the power it had under Kirk.

TPUSA is indeed injecting itself into what used to be nonpartisan elections. For example, there is an election for the Salt River Project board, which sets energy and climate goals for thousands of square miles of the state. Bowyer said his goal is to out-register Democrats 10:1 before that election. He wants to get what he calls "radical environmentalists" out of the state. In contrast, the Democrats are not really much involved in nonpartisan elections like this, because, well, they are (supposed to be) nonpartisan. But these days, "nonpartisan" is as much of a fairy tale as "bipartisan." (V)

Cases against the Fake 2020 Electors Are Fizzling Out

As you probably recall, after losing the 2020 election, Donald Trump's plan was to have Mike Pence reject the electoral votes from some of the states he lost and then have slates of fake electors replace the real ones. Pence didn't play ball, but state AGs in some of the states brought fraud and other charges against the fake electors, anyway. How is that going? Here is the status in five states:

• Arizona: AG Kris Mayes has to decide what to do next. She indicted Rudy Giuliani, Mark Meadows, Boris Epshteyn and a dozen others, including the fake electors themselves. In May, a state judge, Sam Myers, sent the case back to the grand jury because he thinks she didn't explain the law about tallying electoral votes carefully enough to the grand jurors. Mayes appealed, but the appeals court declined to take the case. She has until Nov. 21 to file an appeal to the state Supreme Court. That leaves her with three choices: (1) try to get the Arizona Supreme Court to overturn Myers and bring the case to trial, (2) go back to the grand jury for a new indictment after a better explanation of the law or (3) dismiss the charges.
  
  
• Georgia: Ah yes, Georgia. Remember this one, where Fulton County DA Fani Willis picked her inexperienced boyfriend, Nathan Wade, to handle the case instead of using an experienced prosecutor on her own staff? Her foolishness is beyond all comprehension since she knew the entire world was watching the case. The other side sued to kick her off the case and won. She appealed, but the state Supreme Court denied cert. Now the Georgia Prosecuting Attorney's Council can appoint a new prosecutor if it wants to. Judge Scott McAfee gave the council until Nov. 14 to do so.
  
  
• Michigan: Here a judge dismissed the charges against the 15 pro-Trump electors saying, basically, they were dumb stooges and didn't even understand what they signed up for. Judge Kristen Simmons said the defendants were not "savvy or sophisticated" enough to understand the electoral process. That sounds to us like a dangerous precedent, especially if someone is charged with violating a complicated law—say, insider trading—as in "Your honor, I have no idea what insider trading is, so I can't possibly have done it." There is a 21-day window for an appeal, but the judge forgot to issue a written order, so the clock never started and AG Dana Nessel can still appeal if she wants to.
  
  
• Nevada: AG Aaron Ford filed his case in Clark County but Judge Mary Kay Holthus ruled that he picked the wrong venue. He should have filed in Carson City, the state capital, which is its own county. Ford appealed to the state Supreme Court, which heard oral arguments in August. He also refiled in Carson City as a backup, in case he loses the appeal. A judge there scheduled the trial for next July. Ford prefers Clark County because it is more Democratic than Carson City, so he would get a more favorable jury pool there. He is waiting for the state Supreme Court to rule.
  
  
• Wisconsin: AG Josh Kaul's case is more or less on track. Maybe by 2030 or 2040 it will go to trial. At least Kaul hasn't made any procedural errors, like in Georgia and Nevada, and hasn't gotten any adverse rulings from judges, like in Arizona and Michigan.

A nonlawyer might be forgiven for thinking that when doing something so obviously criminal as fraudulently claiming to be an elector when you knew very well you weren't, 4 years later, the case ought to have long-since gone to trial. But that is not how it works. A case can clearly be made that something is radically wrong with the legal system when 4 years after the indictments, none of the cases have gone to trial. The old maxim sometimes attributed to Thomas Jefferson is correct: "Justice delayed is justice denied." (V)

Dutch Election Was Held Yesterday

The Dutch parliament consists of two chambers. The lower chamber has 150 seats and nearly all the power. The upper chamber is chosen by the provincial legislatures (much like the U.S. Senate prior to the Seventeenth Amendment) and is somewhat vestigial and has little actual power. Yesterday there was an election for the lower chamber, which is filled by proportional representation. Very roughly, if a party gets [X] percent of the votes it gets [X] percent of 150 seats.

There were 23 parties and a total of 958 names on the ballot in the Haarlem area (not all parties run nationally). The voters were instructed to mark one name by filling in the little circle next to the name of the chosen candidate with the red pencil provided. For Americans who don't like either the Democrats or Republicans, this would be nirvana: 958 choices to pick from! Here is a sample ballot for the Amsterdam area. It measures 33 inches across by just a tad under 24 inches high. Using ranked-choice voting to rank all 958 candidates would be perhaps fairer, but is not used:

The ballots are counted by hand, but the raw scores then go into a computer program that figures out who was elected. If any candidate on the ballot gets more than 1/150th of the total vote nationwide, that candidate is elected. Excess votes that any candidate gets are applied to the party to elect candidates from the top of the list on down until there are not enough votes left for another member. In the end, each party has some number of votes left over and a complicated algorithm is applied to fill out the last few seats.

Years ago, the Parliament decided the counting software should be open source. Unfortunately, the nonpartisan election commission that conducts elections is made up of lawyers with roughly zero understanding of software or what "open source" even means. Nevertheless, due to EU rules, they had to write out a tender so that companies all over the EU could bid for the contract. They have to be given credit for knowing that they were in over their heads on this one, so they hired a consultant, (V), to help them write the tender. Simple questions from (V) like: "Do we want to allow the bidder to choose the programming language? What if the low bidder chooses x86 assembly language?" led to blank stares. This was years ago, but from memory, (V) thinks he insisted on Java, as Python was not as well-known then and picking Python would have limited the number of bids.

While being able to choose from 958 candidates may sound wonderful, it has its downsides. No party ever gets a majority, so after the election, many horses are traded and sausages made, with the voters out of the loop at this point. The process typically takes 6-12 months and the resulting coalition is frequently unstable. Here are the preliminary results with 99.6% of the domestic vote counted. Turnout was 78.4%. Overseas absentee ballots have not been counted yet.

Here's the problem. The PVV, led by Geert Wilders, is a one-issue party: anti-immigrant. It wants to ban all immigration from outside the EU. It also wants to deport many immigrants already inside the country. Wilders also wants to close all the mosques and ban the Quran, but he got into trouble for saying this before, so hasn't said it out loud much recently. None of the other big parties want any part of this. Consequently, it will be necessary to cobble together 76 seats without the PVV.

D66 is a center-left party, led by an openly gay young man, Rob Jetten, and would be very happy to lead a new coalition. Its natural partner is the Green/Labor party (GLPVDA). Together they may have about 46 seats, so they need 30 additional seats from two or more partners. VVD is a center-right party but it doesn't agree with GLPVDA on anything. In a pinch after 6 months of arguments, it might agree to an unhappy coalition. With the VVD, then the three are at 68 seats. They could add the CDA (Christian Democrats), which is center-right. This would be enough, but a shaky coalition that nobody wants. Ja21 is an anti-EU, anti-immigrant, anti-tax, nationalistic party, all of which D66 strongly opposes. D66 would definitely prefer the Christians to these guys. FVD is a fascist party; nobody will deal with them.

BBB is a party for farmers. It opposes the EU environmental rules for farmers. That would be tough for D66, which is strongly pro environment. It is also not a possible replacement for CDA because it is too small. The PVDD (Partij voor de Dieren or animal rights party) wants animals to have rights. Since Fido can't vote, people have to take Fido's interests and feelings into account. Here is their website. It is in Dutch, but with Google translate, you should be able to figure it out. All the small parties are mostly one-issue parties and would be terrible and unreliable partners. It will take months and months of negotiations to hammer out a deal that nobody will like. But you did have a choice of 958 candidates. Be happy. (V)

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