Hello and welcome back to The Best & The Brightest. I’m Leigh Ann Caldwell. If
you haven’t heard, today is Election Day, with some important races happening in New York, Virginia, New Jersey, and California. Abby Livingston has some thoughts below, and I’m on NBC tonight gabbing about the results and what they mean as they come in.
One last reminder that tomorrow, Puck and Netflix will be hosting an exclusive screening of A House of Dynamite, the new thriller from Oscar-winning director Kathryn Bigelow and screenwriter
Noah Oppenheim. After the screening, I’ll sit down with the filmmakers for a Q&A, and there will also be a swanky reception. This will be a truly special event, and a lot of fun, too. I hope to see you there. It all goes down Wednesday (tomorrow) at 6 p.m. at the Navy Memorial on 7th and Penn. R.S.V.P.
here!
While we’re all watching the off-year returns tonight, my colleague John Heilemann is looking further ahead—to 2026 and 2028. Below the fold, his sobering interview with J. Michael Luttig, a stalwart of the conservative legal movement, who lays out his case for why Americans need to take Trump’s third-term ambitions seriously.
But first… |
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Glimmers of shutdown optimism: Tomorrow, the government shutdown will break the record as America’s longest, but a bipartisan group of senators worked the phones over the weekend and continued those talks into today, eager to reach a deal. Multiple aides from both parties tell me that negotiations have progressed on a potential three-prong deal: a new short-term spending bill to fund the government through December or January; a vote, or votes, to extend the Affordable Care Act
subsidies; and a trio of appropriations bills, known as a minibus.
Republicans still have to convince their colleagues that such a deal is a reasonable path forward, while aides tell me there’s disagreement within the conference on the time frame of a C.R.: Appropriators and centrists want a December funding deadline to motivate them to pass more appropriations bills, while the far-right faction wants a January deadline (actually, they’d prefer a yearlong bill to freeze funding at the
current levels, which were set in Biden’s presidency). For their part, Democrats are still divided and waiting to see whether their party wins big in tonight’s elections, which could reinforce their position. But they won’t need the entire caucus to move forward, and there seems to be a growing number of Democrats who are ready to notch a deal. Meanwhile, Trump keeps raising the temperature, ignoring a court order to pay SNAP benefits and pushing Republicans to simply nuke the
filibuster and be done with it.
There is some optimism that the Senate could vote to end the shutdown this week, but Speaker Mike Johnson would have to bring the House back to vote on any deal they strike, and they’d likely have to accept the Senate’s agreement. That could very well include Senate-passed Military Construction and Veterans Affairs, Agriculture, and Legislative Branch Appropriations bills—which would fund SNAP; the Women, Infant, and Children food
assistance program; veterans care; and legislative branch employee pay—at Senate-preferred funding levels. Senate Majority Leader John Thune and Johnson met today, but there could still be many steps ahead.
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| Abby Livingston
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- Election night smoke
signals: Within an hour after the polls closed tonight in Virginia, CNN and Decision Desk had both called the governor’s race for Democratic former Rep. Abigail Spanberger, who flips party control of the office from incumbent Republican Glenn Youngkin. Indeed, many Democrats are already whispering about whether Spanberger could ascend to even higher office, now that she’s taking up the governorship—and a chance to stare down Trump from
across the Potomac.
Of course, most operatives were focused on what looked like the tightest marquee race of the evening: the New Jersey gubernatorial race, where Decision Desk also called it early for Democratic Rep. Mikie Sherrill over Republican Jack Ciattarelli. But the best under-the-radar barometer to watch may be down the ballot in Virginia, where Democratic A.G. candidate Jay Jones was revealed to have sent texts fantasizing about murdering the state House speaker, after which
his polls took a hit. He had a narrow lead at the time of this writing, though, and if a Democrat can win with that much baggage, a lot of Republicans could be in trouble next year. But if Republican Jason Miyares prevails, that’s one less attorney general regularly suing the Trump administration, and he could be a formidable gubernatorial candidate in four years.
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A bracing conversation with conservative former federal appellate Judge J. Michael Luttig on
why Trump teasing a third term is no joke. |
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Donald Trump has never been inclined to hit the campaign trail on behalf of candidates he
thinks are doomed. That helps explain his behavior in this year’s governor’s races in New Jersey, where his efforts on behalf of Jack Ciattarelli were limited to three tele-rallies, and Virginia, where he refused not only to endorse Winsome Earle-Sears but even to say her name.
But Trump has never been so reticent about stumping for himself, notably including his repeated suggestions that, despite the 22nd Amendment’s clear proscription against any
president seeking a third term, the idea is very much on his mind. “I would love to do it,” Trump told reporters aboard Air Force One last week, fanning the flames he himself had stoked by placing Trump 2028 caps on the Resolute Desk in a recent meeting with congressional leaders—flames that Steve Bannon then doused with gasoline by declaring that his former boss would
certainly remain in office after 2028 to “finish what we started.”
Two days later, when the resulting political/media inferno apparently got too hot even for our pyromaniacal president, Trump returned to the topic again on AF1. “Based on what I read, I’m not allowed to run, so we’ll see what happens,” he said, adding, “If you read it, it’s pretty clear.” |
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You don’t need to be a resident of
Mackinac Island to spot the egregious fudging here—just someone with a moderately functional bullshit detector. So it was no surprise that J. Michael Luttig wasn’t buying Trump’s bid to be seen as backtracking. Amid the apparently mixed signals, Luttig—a member of the vanguard of the conservative legal movement unleashed by Ronald Reagan,
a former federal appellate judge appointed by George H.W. Bush, and, of late, a fierce Trump critic—published a piece in The Atlantic under the headline “President for Life.” “With his every word and deed, Trump has given Americans reason to believe he will seek a third term, in defiance of the Constitution,” Luttig wrote. “He will hold on to the office at any cost, including America’s ruin.”
Luttig and I discussed that piece and more on my
Impolitic podcast: just how much power Trump has amassed in only nine months back in office; why the Supreme Court has done almost nothing to rein him in; and Luttig’s warning that we ignore the possibility that Trump intends to “subvert or even cancel” the 2028 election “at our peril.” As usual, the excerpt below has been edited for clarity and condensed for space. But the whole thing is worth listening to, and you can find it
here. |
John Heilemann: Steve Bannon has said repeatedly that there are various
ways for Donald Trump to serve a third term without violating the Constitution. Is there anything to that?
J. Michael Luttig: What Steve Bannon has said is just nonsense under the Constitution. But he references a mistake many people unknowledgeable about the 22nd Amendment make, which is that the Constitution speaks about terms of the presidency. It does not. The 22nd Amendment says no person shall be elected to the presidency more than twice. Trump has been
elected to the presidency twice, so the 22nd Amendment, by its plain terms, bars him from being elected president for a third term.
It doesn’t matter what Bannon says, or even what the president says, about his ability to succeed himself. What does matter is that Trump has told the American people that he can run and be elected to a third term, and that he’s seriously considering it. In the nine months he’s been in office, he’s seized and amassed near-absolute power—unchecked by Congress
and the Supreme Court, unchecked as well by the states and the free press. The power he possesses today is more than sufficient for him to subvert, or even cancel, both the midterms and the presidential election in 2028, and run for and be inaugurated as the next president if he decides that’s what he wants to do. That’s what is most significant.
Is there a way around the 22nd? A loophole Trump could exploit?
No. There is no loophole in the 22nd Amendment that
would be available to Trump. But I would not consider anything that Steve Bannon has said on this topic as B.S. Not because he’s credible on the meaning and interpretation of the 22nd Amendment. But believe him when he says that Donald Trump [fully intends to be] the next president of the United States. |
Trump is sending mixed signals on this topic—one day saying I would love to
run, and then two days later, seeming to acknowledge that he’s not allowed to run. What do you make of this?
The morning my article in The Atlantic published, I got a call from a friend in the national media who said, “You just need to be aware of what Republicans on the Hill are saying”—that Trump changed his tune because of threats to the midterms if he continued to press on a third term. So I was left to
believe, and I think it’s probably correct, that Republicans talked to him and said, “Look, we will lose the midterms if you stand on this idea that you’re going to run again.” So for the purposes of the midterms, he backed off.
A lot of governors look at Trump’s actions in L.A., D.C., Chicago, and other cities—the deployment of the military for domestic law enforcement against the wishes of the elected officials in those states— and see a pattern. They worry that Trump intends to
declare a national emergency, impose martial law, and postpone the 2028 election indefinitely. And that’s how he will stay in office.
It would be irrational of any American not to believe that Donald Trump would attempt to remain in the presidency by the means you just outlined. |
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In May, you wrote a piece in which you declared the end of rule of law in America. Since then, how
much worse has it gotten?
I wrote that piece at the end of his first 100 days in office. I chronicled his 10 or 12 signature initiatives, and I concluded that every single one of them was either palpably unconstitutional or otherwise in clear violation of the laws of the United States. The president knows that he has no power under the Constitution to levy tariffs. The very limited power that he does have is derivative of Congress’s power, so Congress has delegated its power to
levy tariffs against essentially a single country in times of emergency. Well, Donald Trump, on his first day in office, declared an economic emergency, so he could rely upon that derivative power to levy tariffs on the entire world in massive amounts, for unlimited duration, and then he shifted back and forth. There’s never been an emergency that would have justified that. The Supreme Court will hear that case [on Wednesday], finally, the lower courts having struck down Trump’s invocation of
the emergency powers.
Donald Trump knew that the Constitution forbade him from deporting migrants to this country, lawful or unlawful, without due process of law. He did it anyway. Trump threatened to fire Jay Powell, the chairman of the Federal Reserve Board. He knew he had no authority whatsoever under the Constitution to do that. And then, of course, he ended up actually trying to fire Lisa Cook, supposedly for cause. But there’s no cause. Finally, the
example I want your listeners to think deeply about is that, on his first day in office, by executive order, Trump purported to change the 14th Amendment’s birthright citizenship right. And the list goes on and on and on.
What’s happened since that article is this: He’s gotten away with every single bit of it, and much more, beginning with the fact that the Supreme Court has acquiesced in his constitutional lawlessness. If the Supreme Court ever does decide any of these cases, the damage
to the Constitution and to the nation will have long been done, and it’s irreparable. |
Early on, the lower courts stood up to Trump, but he’s been on a winning streak on the shadow docket
of the Supreme Court—where the court either doesn’t take cases or stays a lower-court decision against him, which tacitly gives him a green light. What explains this behavior?
The Supreme Court, on the shadow docket, takes an emergency appeal [of a lower-court ruling against Trump] and then, days later, produces not an opinion of law, not a reasoned explanation of its decision, but what’s known as an order, which just says it is ordered that the lower-court decision is stayed.
The Supreme Court’s never done this in all of American history. The only power of the Supreme Court is the power of its persuasion in its written explanations of the Constitution. So whenever the Supreme Court is deciding the most important questions possible under our Constitution without a single word of explanation, it is acting illegitimately. The Supreme Court itself is in a self-inflicted crisis today in America—and as long as it proceeds in this fashion, it will be in constitutional
crisis.
But why are six ostensibly conservative justices on the court doing what they’re doing, in your view?
For a long time, I said that it was either out of fear of Donald Trump, or favor. Today, given the shadow docket, I don’t think there’s any other answer than that it’s out of favor for Donald Trump.
So you’re saying they agree with Trump?
The Supreme Court has left the American people to believe that. There is no other
explanation. If they’ve got one, they need to tell the American people. |
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