Trump Floats Serving Third Term— Here's What The Supreme Court Should Do Now: Clifford Winston

Forbes Breaking News

Clifford Winston, Senior Fellow at the Brookings Institution, joins "Forbes Newsroom" to discuss his article, "Supreme Court Must Resist Trump's Threat to Democracy," and why he thinks the Supreme Court should take action after President Trump floated the idea of a third term.

Transcript

00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes.

00:07Joining me now is Clifford Winston, a senior fellow of economic studies at the Brookings

00:11Institution. Clifford, thank you so much for coming on again. I think something that a lot

00:18of people perceived as a joke is now becoming a bit more serious, and that is President Trump

00:24ruminating on this idea of a third term because he's joked about it at rallies before. He

00:29now appears to really be considering it because reportedly in a phone call with NBC News,

00:35he said while it's still too early, a lot of people do want him to run for a third term.

00:39He's not ruling it out, and there are methods to do so. And you recently wrote,

00:45the Supreme Court must resist Trump's threat to democracy. Talk to us about the piece.

00:49Well, sort of Trump's operations. I mean, he usually tests the waters. So he'll say something

00:56in joking, but he'll see what the reactions are. And it was something like this. I'm going to run

01:02for a third term. I have no doubt people close to him said, that's a great idea and you ought to do

01:09it. And he started throwing out suggestions on how he could be able to do it and what legal

01:17justifications he would have. So, you know, we start with that. And, you know, things are going

01:23to go back and forth. But, you know, my concern is really, as this goes on, all it's going to do is

01:31brew more hostility between the two sides, if you will, MAGA and the rest of the country.

01:37And that's not good. We have enough. And I think this is an area where the Supreme Court can step in

01:43and simply say, look, this is something that's pretty cut and dry. You're not able to run. We

01:50have the 22nd Amendment. It's pretty easy to interpret. You know, we should dispense with this.

01:56But it does not appear they're going to be doing anything like that.

01:59I do want to read the language of the 22nd Amendment. It says no person shall be elected

02:04to the office of the president more than once. And the loophole that seems to be there is that term

02:10elected because President Trump was reportedly asked about different methods. And one of the

02:15methods being Vice President J.D. Vance, he runs for president. Trump runs as vice president. And

02:21then J.D. Vance hands it on over to President Trump. I mean, how strong of an argument is that?

02:27The response to that is you actually can't run for president with a vice president who couldn't

02:34serve as president. So, yes, Vance could run and he will, no doubt. But I think he would not be able

02:44to choose Trump as a vice president simply because then Trump wouldn't be able to serve because of the

02:5022nd Amendment. So I think that's hard to get that one by. But, you know, my bigger point in this article

02:57and has more to do with just everything the court does is so much of what they do is based on their

03:05ideological preferences. You know, this is not mathematics with cut and dry answers and, you

03:12know, serious science with theory and empirical evidence. This is what they think. And, you know,

03:18I think Judge Richard Posner put it well. You know, you think about what the decision is that you want

03:24to reach and you find the law to support it. And that's really pretty much what they do. And they

03:30could do it in this case. I have no doubt that Thomas and Alito would certainly support it. I think

03:38there's a pretty good chance that Gorsuch and Kavanaugh would support it. So it really gets down to

03:44Roberts and Barrett. Are they going to go along with it? And who knows? I don't see the harm.

03:54I mean, there are counterarguments to this we can get into of them just saying,

03:59fully, let's stop this. And let's not have this hanging over us for three plus years. You know,

04:06this is not going to go away until they say it's over. And you know how Trump is. I mean,

04:10he'll dig in on something he will not let go. And so that really is the issue that I'm motivating it

04:16because I am concerned in general that the justices make decisions that are based on their

04:23ideological preferences. They can justify them in terms of the law, however they want.

04:28And they certainly could do it in this case. And I think it would be helpful to make a statement

04:34early rather than later.

04:36One counterargument could be, hey, President Trump hasn't done anything formal about this. He's simply

04:42ruminating, simply floating the idea out there, seeing what, you know, is said about it. He's

04:48saying it's still too early. So what exact action would you want to see from the Supreme Court?

04:56Does not make any comments about cases that are not brought before them. All right. So that's the

05:04argument right there. They shouldn't say anything because there's no case before them. This sort of

05:10breaks with ethics. You're not supposed to do that. Just general behavior by the court. You know,

05:16why do we need to do something like this? Okay. A couple of reasons. One, as I said, this is a source,

05:24a pretty serious division in the country. And, you know, who knows how these things can flare up

05:29as things go on? Two, you know, one knows that Trump will try to use this for leverage in any way

05:38he can. He'll hang it over people. And if he can use it to bargain in something, someone creative can

05:44think of how he could do it, maybe to get a commitment that he won't be prosecuted for any

05:49crimes after he becomes a citizen. You know, who knows? Right. Third, I don't see the harm. I really

05:56don't. I think you could say in a very clean way. And, you know, it's not unheard of that justices

06:04make comments that have implications for cases. Just to say, look, the 22nd, you know, have a

06:12justice say, here's my opinion of the 22nd Amendment. And simply say, you know, somebody who served two

06:19terms cannot run for a third, period. That would be enough. What justices here do you think are going

06:26to be the most important when it comes to this? Because you did float Justice Amy Coney Barrett

06:30and Chief Justice John Roberts. Where do you think they would land? And have they broken with Trump

06:36before? And most importantly, have they broken with President Trump recently in the second term?

06:43You know, Roberts did not like Trump's call for a judge to be impeached,

06:49because he disagreed with him on a ruling about someone. And Robert said, no, that is not the

06:59appropriate behavior or action that we do with a judge. We appeal. So he clearly has indicated his

07:08dissatisfaction with that. And, you know, Coney Barrett just recently sided with the liberal justices

07:13on a case about, you know, again, one of Trump's actions. So I think she could think independently.

07:21MAGA let her know about it, that they didn't like what she did. So she's got to be thinking about

07:27that, I have no doubt. So those are the two who have shown that they're not completely in lockstep

07:34agreement with Trump. And they could make a statement about that. I don't know, in terms of your

07:41question, what are they likely to do? You know, most of the people who, in the legal area, who get

07:48back to me, are saying, in the end, they're not going to go along with it. If they think they will

07:54uphold the 22nd Amendment, and if push comes to shove, they will say, no, you cannot run for a third term.

08:03And I hope they're right. But my feeling is still, if that's what they think, I just don't think it

08:10would be such a bad idea if they said it earlier, rather. But a lot of people say, no, well, that's

08:16not what they do, which is kind of strange, given that we have the executive branch, which has broken

08:22every tradition we've ever thought of what the executive branch does. I don't see that it would

08:28be so horrifying that the judicial branch does something different for once, and says, no,

08:34you're bound by the 22nd Amendment, you can't run again.

08:38Speaking of Trump running for a third term, I spoke with a member of Congress, Congressman Andy

08:44Ogles, who introduced a resolution to amend the 22nd Amendment, and it would allow President Trump

08:50to seek a third term. And the language was very specific. It was because President Trump didn't

08:55serve consecutive terms. But there has been, I mean, Democrats have gone really against that.

09:01Even some Republicans said that, hey, that's a long shot. That probably won't happen. Do you think

09:07that there is appetite amongst even the American people to see any president, even President Trump,

09:13serve a third term?

09:15I mean, to be honest here, I mean, this is really sort of cult devotion that he's been able to inspire.

09:23So I have no doubt that, you know, that 40 plus percent would love to see him in for a third term.

09:30You know, it's really a question, obviously, of the people in the middle. So no, I don't think,

09:36and also, they're very passionate about their views, probably more passionate than the people

09:42who oppose him. So there may be more people who oppose him. But I think the MAGA people seem to be,

09:47at this point, anyway, more passionate. So yes, I think that there certainly would be a notable

09:52fraction of this country that would be happy to see him serve a third term,

09:56and continue to carry on the way he's carrying on.

10:00So let's say that the Supreme Court doesn't wade into this just yet. From the legal experts you talked

10:07to, I mean, how feasible is it that President Trump actually tries running for a third term?

10:13I mean, the 22nd Amendment is pretty cut and dry.

10:15I think, but I think they're going to say, look, let's, we have nothing to lose. Let's bring the

10:24case to the court, right? I mean, I don't think they anticipated when they brought the case about

10:31Trump's immunity for criminal actions while he was in office, they would get the ruling they got.

10:38They got a lot more than what they expected, right? So I think they're feeling, look, we may win this.

10:45Who knows? And so I think they will, if he wants to run again, then I have no doubt they will bring

10:52a case. And I think their attitude will be, we have nothing to lose. We may win it. They'll come up

10:58with crazy things and make the argument. And who knows what the justice is going to do? I mean,

11:04as I said, I think most likely it would be a five, four cases as we see things now, but

11:10you know, I'm not, I'm not putting any guarantees. I don't know how anybody could.

11:16What specifically then are you looking out for? Because as we talked at the beginning of this

11:20conversation, this seemed to start as off as a joke and now it's ratcheting up to something

11:25a little more serious. I mean, he said this is still early on. He hasn't made any formal plans,

11:31but what specifically are you looking out for next?

11:35It depends, again, how his popularity is maintained. You know, if people like what he's doing,

11:46me, obviously he's very sensitive to public opinion. If somehow we get through this tariff

11:52mess, you've been speaking to people about that. So that's a long shot, but he's defeated a lot of

11:59long shots in his life and our economics are good. And we wind up getting foreign policy

12:08settlements, reducing chances of war, ending certain fights that we have now or conflicts

12:15that we have now, all this looking good. He's going to say, he's going to think to himself,

12:20look, I don't want to be a private citizen. I know they're going to come after me and they will.

12:25There's no question that any people on the left have a chance to bring back cases against him or

12:32even new cases. They're going to do it. And he says, look, as long as I'm president, they can't

12:37touch me. So he's going to want to do it. He'll see how things obviously are going in the country.

12:44But if that's the case, then I expect that the Supreme Court will be given the case.

12:47It's going to be taken very seriously. And to your point, I mean, no one would have thought

12:53after January 6th, after all of the legal challenges President Trump faced, that he would

13:00then be elected, win the popular vote in November. It was the biggest historical or biggest comeback

13:07of arguably in modern history. Do you think if the Supreme Court offers their opinion now on this,

13:14do you think that's enough for President Trump to kind of back down on even commenting on running

13:19for a third term? You know, he is. No, no. I mean, he'll interpret that as that's just a starting

13:26point for negotiation. But I think it would still be a valuable signal for the country that if they

13:34did that and it made it clear, you know, we're going to oppose the law here and he's not to do this.

13:42This is a cut and dry case. And we're going to let you know now. But no, that won't stop him.

13:47You know, he'll bring the case. But at least people will have expectations that, no, this is not going

13:54to go the way that other cases have gone that are clearly based on ideology. We know what to expect,

14:01which I think we think would be healthy at this point. But look, this has all been a shock to me

14:07for decades, for well, since he's got into this. So who knows what will happen?

14:13Well, there's certainly a lot to look out for. And per usual, I always appreciate your insight.

14:18You are welcome back anytime. Clifford Winston, thank you for joining me.

14:21See you again.

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