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- [00:00]
Mike Pesca
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- [00:30]
Carolyn Levitt
Are you still quoting 30 year old movies? Have you said cool beans in the past 90 days? Do you think Discover isn't widely accepted? If this sounds like you, you're stuck in the past. Discover is accepted at 99% of places that take credit cards nationwide, and every time you make a purchase with your card, you automatically earn cash back. Welcome to the now it pays to Discover. Learn more@discover.com credit card based on the February 2024 Nelson Report hi.
- [01:01]
Mike Pesca
If you're a Pesca plus subscriber, we invite you to stick around after hours for this month's version of the Book club. Just wanted to have my old friend Ben Limberg come by. He's one of America's best baseball writers and thinkers and talkers. So we will be talking babip. But he's also a great culture writer, so we'll be talking Severance and White Lotus. Maybe we'll be talking about how all those things are overlap. I don't know. What would that be? Perhaps the suicide squeeze. I don't want to ruin anything from Prestige TV or last night's Rockies Mariners game. Tilt. Rockies Mariners tilt. So Ben Lindbergh will be by in order to experience this. All the other book clubs. All else we do live events. The show without any ads, the show with extra bonus content. Go to subscribe.mike pesca.com we're adding more every day. Hope to see you on the 24th. It's Tuesday, April 15, 2025 from Peach Fish Productions, it's the gist. I'm Mike Pesca. The Trump administration unlawfully deported Kilmar Abrego Garcia and El Salvador is not giving him back. Trump wants to re industrialize everything in America, but he's offshoring our gulags. Other than never admitting a mistake, a Roy Cohen trope that Trump has lived by, I was actually confused why Trump thought it was in his interest to let this particular mistake stands. I know there is a tempting explanation to grab for something like oh, it's because Trump is anti Hispanic and a liar. But I'm going for something deeper than that. What about having an innocent man rotten jail while the public is appalled? What about that helps Trump? So we're now getting Trump's answer. He thinks or he has his underling say that Abrego Garcia is not in fact innocent. They mean this in general, not in any specific crime. But it seems like the administration believes it could get the public to believe that Abrego Garcia did something, was a gang member and therefore they could make this all an example of Democrats just not getting it by showing they care about a dangerous gang member. Here was White House spokesperson Carolyn Levitt today.
- [03:17]
Bruce Peabody
Fortunately, many in this country care more about this quote unquote Maryland father, illegal alien MS.13 gang member than a Maryland mother and an American citizen who was brutally murdered at the hands of a different illegal alien. Of course I am referring to Rachel Morin.
- [03:34]
Mike Pesca
So critique of that statement. I don't know where the quote unquote begins and where it ends. And also if it is only Maryland father. Yes, he, he's not, quote unquote a Maryland father. He's definitely a Maryland father. He has three children, including a five year old son with autism who's deaf in one ear. And this man was definitely snatched up from his home in Maryland. So while Levitt at least acknowledges that the murder victim she cited was from a totally different case, it seems important to note that it's from a totally different case. I could imagine caring more about justice for Rachel Moran than anything else in the world and still looking at this circumstance and say how does arresting and deporting a different guy say anything about what happened to Rachel? I think it's all a stretch. I think it's a loser for Trump. I've been monitoring the friendly media Breitbart on. They're sure to soon be running the quote unquote real story about Abrego Garcia documenting, you would think more than an unnamed confidential informant's claim that he was once in a gang. By the way, the same gang that threatened to kill him and rape his sister, which is why he fled El Salvador. So far, nothing there. Nothing from that story, just the assertion he's a terrorist. Let's see what they come up with. Let's see how far they will go to counter a lawful court order with a story and a story that seems incredibly thin at best on the show today. I will tell you why the SAVE act almost definitely will not get in the way of you voting if you are a married woman who changed your name. And if you are not, still listen, because it'll be civically engaging. But first, you know, with everything I've said, you may be thinking to yourself, it's a shame that Donald Trump can't run for a third term. But some say he can. Mostly Donald Trump and his acolytes. There are those members of the academy who have been looking at this for a long time, however, and I found someone who's written about it more than anyone, far predating the idea Specter, shall we say, of Donald Trump running. Once again, this is going to be the most thoughtful and rigorous breakdown of the constitutionality of possibly becoming president. And after you've already been elected president twice, or as Trump says, thrice, but really twice. Bruce Peabody, a fairly Dickinson University political science professor, has written about this in law journals. He's been writing about it for almost a decade. And Bruce Peabody joins me next.
- [06:23]
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- [07:35]
Carolyn Levitt
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- [08:08]
Mike Pesca
Recently, Donald J. Trump, the president in his second term, has been musing about a third term. In fact, it's more than recently and it's more than musing now. I think I know what's going on here politically. Well, first of all, there was the Occam's razor explanation. The guy wants a third term, right? He likes being president. He likes power. He's not, not an autocrat. That's number two is I think he realizes that if he's perceived as a lame duck, he'll have less ability to get his agenda passed. It's all about the agenda, not about, you know, personal enrichment or glory. And so how do you take away the lame ducked ness of it all? You at least float the idea of a third term. But you know, there is a body of evidence or work or at least scholarship that has been investigating this exact question. And in fact, and this is why it's really useful, a lot of this questioning predates Donald Trump. So if we were to think about, oh, what if Donald Trump gets a third term? It's hard to separate that and the ideas from the Donald Trump and this of it all. But someone who has done just this is Bruce G. Peabody. He's a professor of political science at Fairleigh Dickinson University and he is the author of a journal article that I found in the Minnesota Law Review, the Twice and Future President Revisited of Three Term Presidents and Constitutional runs. Professor Peabody, welcome to the gist.
- [09:38]
Bruce Peabody
So glad to be here.
- [09:39]
Mike Pesca
What was the impetus for this Law Review article?
- [09:43]
Bruce Peabody
So the first, the first article dates back to 1999 and I suppose the immediate impetus was a relatively popular president then Mr. William Jefferson Clinton was leaving, was, was leaving office. And the speculation was, well, what's he going to do next? And that got a colleague and I musing about the constitutional implications and structure and we discovered this oddity that despite what most people think, the 22nd Amendment's limitations are actually somewhat clipped, they're somewhat curtailed and really don't say what a lot of people, the provisions don't say what a lot of people expect them to say. So that's entry one, 1999, way back when. This was a, I think Mr. Clinton was the kind of nominal prompt for thinking about these questions generally. And then of course, the update in 2016 reflected kind of our brave new world of hyper partisanship of candidates who are interested in taking power and remaining in office, perhaps and Also just a sense that there were relatively few. The American electorate seems to like its dynasties, whether it admits it or not. Right. Where.
- [11:03]
Mike Pesca
Right, right. Because this was, this was very much informing 2016, which was there was a Clinton on the ballot. The next election would be the first without a Clinton or a bush in 20 years. So yes, this was definitely in the air in 2016.
- [11:17]
Bruce Peabody
Exactly.
- [11:18]
Mike Pesca
We should also note though that. I don't know, you tell me. Does the word it starts off with Clinton? The latest, the 2016 version of the Law review essay. Does the wor. Does the word or name Trump show up in this essay?
- [11:30]
Bruce Peabody
Does the word Trump show up in an essay? I don't know about that. But of course, in 2016 it was pretty speculative to think about a third term for Mr. Trump. Never mind, never mind the first two. Right.
- [11:45]
Mike Pesca
I will answer my own question by saying here is the closest it comes. A purpose based analysis may help a legal interpreter sift through multiple plausible readings of a law, or it may assist us in deciding that our adherence to legal language needs to be set aside in favor of other trumping values. So that's the closest it came?
- [12:04]
Bruce Peabody
Pretty close, yeah.
- [12:05]
Mike Pesca
Oh, yeah. Right on the ball. Okay.
- [12:07]
Bruce Peabody
So I would. Obviously this is my self interested interpretation, but I actually think the absence of Trump in the analysis might be a plus insofar as we're in an age of motivated reasoning. Right. We're in an age where people are going to shade their legal arguments, shade their policy positions based on how they think it will advantage one candidate or another or one party or another. And I hope that both the analysis in 1999 and the subsequent work tries to avoid that. Right?
- [12:36]
Mike Pesca
Yes. It's almost like it should be a separate. It's almost like a thought experiment perfected. It's like Plato's cave. Because what you have to do now is, if you're being extremely fair, think about this idea absent of, absent the current people who it might benefit, absent any current real world implications. What if you could somehow cordon off the parts of your mind that know about this? Well, of course you can't. You can't do that. Except you could in 2016 and you did. So that's, it's very useful in a way to think about. But let's get to what you were thinking about, what you were saying for the audience. I will, I'm sure you have it memorized and tattooed on your lower back, but I will now read the 22nd Amendment. No person shall be elected to the office of the president more than Twice. And no person who has held the office of President or, or acted as president for more than two years of a term to which some other person was elected president shall be elected to the office of the President more than once. This seems to me to pretty clearly say on the first part, can't get elected more than twice. That seems clear. And then this other part allows for someone becoming president. If you become president because you're vice president or I guess there's other csectors, succession of power implications, you know, you're a Speaker of the House and the president, the vice president, if you become president in the second half of a presidential term, you could get elected twice more. If you become president in the first half, as John Tyler did, 30 days in, you're limited at 10 total years, which is to say you can't get elected twice. So that was the intention of the amendment, right?
- [14:20]
Bruce Peabody
That was the intention. Well, that's actually a good question. That's certainly the language of the amendment. I think probing the intention is a little trickier. But clearly the language and the intention line up on this basic picture, right, that we're going to restrict the number of times people can be elected to the office. That is, after all, the main way in which we get people into the White House. And as you note, we're going to also count somebody who serves for more than two years of somebody else's terms. We're going to count that as essentially one elected term. Right? It'll, it'll, it'll factor into that equation in that way. So yeah, I think that's where we get the text and the intentions lining up neatly.
- [15:01]
Mike Pesca
So what is your critique of my understanding the understanding of the text before you started writing about it? Where do you point your erudite legal finger and say, oh, there, that might, that there might be a weak part of the argument.
- [15:20]
Bruce Peabody
Mike, I can't critique what you've said. You've actually articulated it clearly and extremely well. I think the critique is that most people don't read as well as you do. Right? So most people somehow think this language bars folks from once again serving as president or becoming president through non electoral means. And it turns out that in the Constitution's considerable but certainly limited wisdom there are other ways that a person becomes president besides being elected to the office. And maybe that sounds like angels dancing on the head of a pin, but of course the most obvious way in which this occurs is through the vice presidency, right? We have to have a method for a president who is disabled or expires or is unable to serve the duties of the office to be replaced by somebody else. And traditionally we call that figure the vice president. And such a person comes into office generally having been elected vice president, but certainly not having, not having been elected president. So that's what you read so well, is indeed the language. But it opens up the door to these other scenarios.
- [16:31]
Mike Pesca
Where is it most ajar?
- [16:33]
Bruce Peabody
Where is it most ajar? So probably in that scenario we just talked about both, because it's kind of intuitively clear to most folks, we can, we can imagine that, that, that prospect unfolding. And of course, Mr. Trump seems to have alluded to it over this past weekend when he talked about that as a, as a possible scenario. So, and we might add to that a third dimension, I guess, which is without too much imagination, we could imagine that Mr. Vance might go along with such arrangement. We don't know. But he certainly seems to be a loyal servant or subject or accomplice to Mr. Trump. And under one scenario, he would have to kind of willingly give up the office as a, almost placeholder. So I think that's the single kind of clearest or most intuitive version. But another one that's pretty easy to grasp is just the idea that Congress is allowed under the Constitution to pass a succession statute, right? What happens in a crisis? What happens if the president and vice president are not available to serve as commander in chief? This is a scenario we can imagine happens during, again, an emergency when we would definitely need somebody to fill in the office and kind of take the reins of executive authority. And so we have, of course, the 1947 law which delineates, which lays out the line of succession that includes folks like the speaker of the House, third in line, the president pro tem in the Senate. But one could imagine, and maybe even defend on a policy basis, that having twice elected presidents named in this list would also be a viable option.
- [18:15]
Mike Pesca
Now, there's also another Amendment, right, the 12th Amendment, which you talk about and grapple with. But those who have looked at this, other constitutional scholars have said and perhaps elevated importance beyond what you do, that no person constitutionally ineligible to the office of president shall be eligible to that of vice President of the United States. So if you can't run for president a third time, you can't run for vice president. And then if you're not vice president, you can't become president in that matter. I so what's your rebuke to that idea?
- [18:50]
Bruce Peabody
Yeah, people get very excited about the 12th, and they do get very excited.
- [18:53]
Mike Pesca
I'm very excited.
- [18:54]
Bruce Peabody
Which is. Which is kind of wonderful. Right. We should get excited about constitutional provisions.
- [18:58]
Mike Pesca
The 22nd was on my lower back. That was. This is a full sleeve Tattoo. Is the 12.
- [19:02]
Bruce Peabody
You're going to run out of room at some point. Right. Fortunately, it's hard to amend the Constitution. So you're pretty good if you can get the basic canvas down.
- [19:08]
Mike Pesca
Yeah, I got a spot on my.
- [19:10]
Bruce Peabody
Tongue left for sure. So the 12th. Yeah, as you know, the 12th based. The 12th is basically put into place on the very reasonable proposition that the main job of the Vice president. Right. There's a famous quote that the Vice President is not worth a warm bucket of spit, although spit's not the operative word. So the main job of the Vice.
- [19:31]
Mike Pesca
President is to John Nance Garner piss. I think he said, we're elected.
- [19:35]
Bruce Peabody
Well done. Absolutely. So the main job of the Vice President is to become president. And it sure would be goofy to have a person in that position who was ineligible to be President. I totally accept that Makes good sense. The problem for the critics or for the skeptics who take up this particular thread is the word eligible. Right. It's pretty specific. And it is referenced in other parts of the constitution besides the 12th. It comes up again in Article 2, Section 1, which talks about other eligibility matters. Right. It says that the President must be a natural born citizen. The President must be 35 years of age. The President must be 14 years a resident within the United States. And folks who don't meet those standards are not eligible to be President. So to take your language, which I like Occam's Razor, might suggest, that's what eligibility means. That's the only time the word eligible is the only other time the word eligible is coming up in the Constitution. And it would seem reasonable to conclude that's what it means. So for sure, a vice president who is 33 years old, a vice president who was born in Portugal, a vice President who has mostly been away from the United States before, before serving as Vice President, those folks, those individuals would not be eligible to be either Vice President or President. Case closed. But that again leaves open all sorts of other possibilities.
- [21:05]
Mike Pesca
So other scholars have said that. Well, I know what one of your. And I was listening to your answer. The reason why the 12th Amendment doesn't necessarily talk to the 22nd Amendment is that it was authored over 100 years later. Right. So it couldn't have known that this limitation on two terms could also have had any impact, could have any effect on the idea of not being ineligible for the President, that means you're not eligible for the vice president. But aren't there a whole lot of constitutional amendments, just areas of constitutional law, where the amendment that was written after is in working in concert with the amendments that are written before and vice versa?
- [21:51]
Bruce Peabody
I think that's fair. Right. So actually, I didn't bring up this argument, although I think it is an interesting one, right, that the argument is basically that the 12th can't, can't include the idea of a twice elected president being ineligible because that language wasn't put into effect until the 22nd Amendment was passed. It was ratified, pardon me, in 1951. And how can the past predict the future? But as you note, it's not out of the question to have how we understand past language to be modified by future language. That's a consistent and plausible constitutional rule. That said, the 12th Amendment had to mean something originally. And I think again, the simplest way to understand what it meant was to reference the other eligibility language that existed within the Constitution at the time. And that's a pretty limited list of qualifications for president. If the 22nd amendment had modified the 12th or had sort of filled in its contours, it would sure would have been helpful if it had said that explicitly. But the 22nd Amendment's pretty clear in focusing on elections and that process for becoming president. So I get it, it's a smart argument. But it does require us to do some heavy. It does require the 12th Amendment to do some heavy lifting, to suddenly say, well, now the word eligible means both qualifications and elections when the Constitution's very comfortable using both those words in separate contexts.
- [23:33]
Mike Pesca
So the one thing that I have realized by doing a deepish dive, which is to say talking to you, reading what you wrote and just kind of doing the math and matching up the 12th and 22nd, I don't think anyone could argue that should someone who served president as the president twice, be it Bill Clinton or Barack Obama or Donald Trump, get elected speaker of the House or appointed to a cabinet position, anything in line of succession, but get appointed speaker of the House that you don't have to be a member of the House to get appointed to, and then number one and two go down, step aside. No president, no vice president, the speaker ascends to president. And there's really absolutely nothing stopping a former president from doing that. Right?
- [24:21]
Bruce Peabody
I think that's right, of course, and I'm glad you brought it up, because I think part of what's valuable about this moment, and as you noted at the outset, we can't really know how seriously Mr. Trump is approaching this. Although his language has made it sound like he's kind of shifting from joking to greater seriousness.
- [24:47]
Mike Pesca
But yeah, sort of like Greenland. Yeah, he does.
- [24:49]
Bruce Peabody
That's. Who really knows? Fair enough. But, but in any event, it's a, it's a valuable conversation to have in part because a lot of our assumptions aren't, aren't true. Right. Or a lot of our, a lot of our, a lot of the ways in which we structure important constitutional and legal questions are pretty unexamined. And one example of that is the fact that the person fourth in line is the president pro tem. Right. So this person is distinguished by being the longest serving member of the Senate. Right. Well, I mean, it's, it's a bit of hyperbole to say, but maybe only a bit to say who is the least qualified person to take over the country in an emergency. It might be somebody who's a kind of long term creature of the Senate. Right. Somebody who's been in the Senate for decades, presumably, who knows how the legislature works very well, but might not be quite ready to take the reins where 1, 2 and 3 have been knocked out or missing or parts unknown. So, yeah, I think the scenario you describe is not only legally permissible, but it might even be a good idea to say, gee, a twice elected president might serve us better than the Department of Homeland Security, even, or certainly the Secretary of Labor, never mind the president pro tem.
- [26:11]
Mike Pesca
As a normative question, do you think it would be good for Donald Trump to get elected to a third term or anyone, any other president?
- [26:19]
Bruce Peabody
So, yeah, it depends what you have in mind with the answer to that question. As a constitutional scholar, I'm trying to focus on the legal arguments rather than the policy arguments. As I've said, I do think it is a good idea to explore from a succession point of view whether twice elected presidents could serve in an emergency. I think as a policy matter, that is something worth exploring and I'm pretty sympathetic to the argument that that could serve us better as a nation than some of the existing people named in the succession statute.
- [26:52]
Mike Pesca
Bruce GP Body is a professor of Political science at Fairleigh Dickinson University and is the author of now the much cited or at least debated the Twice in Future President Revisited, which is follow up on his first Twice in Future President Law Review article, Three Term Presidents and Constitutional En runs. He wrote that for the Minnesota Law Review. Professor Peabody, thank you so much.
- [27:15]
Bruce Peabody
So great to talk to you. Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have.
- [27:38]
Carolyn Levitt
One of your assistant's assistants switch you.
- [27:40]
Bruce Peabody
To Mint Mobile today. I'm told it's super easy to do@mintmobile.com.
- [27:44]
Representative Rich McCormick
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- [28:28]
Mike Pesca
And now the spiel I got a push notification the other day alerting me that the SAVE act had passed the House of Representatives. If it passes the Senate, it could disenfranchise nearly 70 million married American women. Huge if true. The headline sure treated it that way. Depending on the outlet's lean they told you it might happen. Or that it absolutely will. Fact check Dawg asked. Will the SAVE act prevent married women from registering to vote? MSNBC and the New Republic dispensed with the question marks. House GOP tramples on women's rights with the SAVE Act. That was MSNBC and for Democrats pass bill making it harder for Married women to vote New Republic I did not know four Democrats could pass a bill. I did know, however, about the SAVE act because two months ago I was watching all those town halls where Republicans were getting grilled over the Doge cuts. And in several of the town halls, really several, the SAVE act came up the idea that Congress had passed a law requiring people who change their names, typically married women, to dig up birth certificates they might not have ready access to to. Here's representative Rich McCormick dealing with that claim in his Georgia district.
- [29:42]
Representative Rich McCormick
On January 9, 2025, you joined as a sponsor of HR22SAVE Act. This means that me and 69 million women like me who have taken their spouse's last name will not be eligible to vote. I want you to look me in the eye and tell me why you are trying to take away my right to vote.
- [30:12]
Mike Pesca
So if you're saying this bill is going to take away 69 million people's right to vote. I disagree.
- [30:18]
Representative Rich McCormick
Every single news outlet, Fox, cnn, every news outlet that is reporting on this are saying that it is going to make it incredibly difficult for any woman who has a married last name to vote. It is a voter suppression law that you signed on as a sponsor of and I want to know why you're scared for me to vote.
- [30:39]
Mike Pesca
I am definitely not scared of you. Vote again. Huge if true. But I'm here to tell you I do not think this will happen. And there are five reasons that married women aren't about to be disenfranchised by the SAVE Act. I will list them in order of forcefulness. 1. Well, there's the official GOP defense. Here's white House press secretary Carolyn Levitt.
- [31:03]
Bruce Peabody
The Democrats have been fear mongering about this bill, have been saying that married woman, if if their name has changed, they didn't change it on their identification would not be able to vote. That is complete fallacy. There are outline in the bill about how to avoid that and that is a myth that has been proven wrong by the text of this bill. And I believe some of the co sponsors of the bill have been very vocal in addressing that. And certainly I myself as a married woman would not stand before this podium if the president did not support such a common sense measure.
- [31:31]
Thank you.
- [31:33]
Mike Pesca
There is no way she would support a bill that disenfranchised women who changed their names after marriage. Says Carolyn Levitt, a married woman whose maiden name was Levitt. She didn't change her name. So I don't know how strong a denial that is or at least that part of it overall let's say myth, mostly not proven to be a myth. But let's pay attention to where when she talked about the language of the bill. Okay. The bill does allow states to determine ID requirements. So for example, a state can require citizen to appear on driver's licenses. New York right now already does this with its real id. So yes, Republican states could choose to make it harder to prove citizenship. I would guess that blue states would make it easier and that's worrying. But this law does not mandate voter suppression. It perhaps you could say enables it. But I'm going to get to how logical or how strategic that enabling is. But if a state wants to go there, I'm not going to say there's not an opening. But here's why I question how much Republicans want to push on this this point. Number three, married women vote Republican. Here's what makes the whole theory that Republicans are targeting married women. Somewhat nonsensical.
- [32:52]
Representative Rich McCormick
According to exit polling from NBC News, non married women voted for Vice President Kamala Harris by 59% to 38%. Married women voted for President elect Donald Trump by 51% to 48%.
- [33:05]
Mike Pesca
And in the other exit poll, the AP1 53% of married women voted for Trump. Let's take Trump out of it and just go by party preference. Overall, Pew found married women favor Republicans by 5% over Democrats. Why would the GOP want to suppress a core of its own base? Here's the fourth reason why it's not going to become a law. The bill passed the House 220 to 208. Four Democrats joined, all the Republicans voting for it. This is a Republican bill, but to get past the Senate filibuster, Republicans need seven Democrats to join them. That is not going to happen. So the bill is not really a law in waiting. It is a messaging vehicle. It exists to signal, to provoke, to fundraise, maybe to counter fundraise, maybe do inspire Democratic voters. This always happens with suppression. Real or imagined. The suppressed party actually benefits. I don't know, maybe a bit of it is to reassure the base it's not functionally going to change voting laws. And number five, and this is the real trend, if you are very worried about this disenfranchising potential of the SAVE act, the trend is voting is getting easier in America. Married women will still be able to vote as easily as anyone else. Well, anyone else who's balancing kids, jobs and how to get to the polling place. But in reality, getting to the polling place not nearly as important as it used to be. On one specific day, voting access is expanding. Only three states don't allow any form of early or in person absentee voting and fewer than 10 still require a valid excuse to vote absentee. So the forces of voter suppression, they are getting beat back overall, ironically, just in time to benefit the very people who are trying to suppress the vote, the Republicans. That's it for today's show, just as produced by Cory Wara and CBSO Michelle Pasco G. Peru de Peru and thanks for listening.