A Third Trump Term?

I had expected to spend at least several days and possibly several months of the post-election period weighing in on the intricacies of the Electoral Count Reform Act, Article II, the Electoral College, and all of the other pieces of the Rube Goldberg machine by which the United States chooses a president. Had the outcome been extremely close, post-election challenges and counter-challenges would have brought echoes of 2000 and 2020. Even if the outcome had been decisive for Harris, there would have been much to discuss, because Trump wouldn't have conceded under any circumstances. However, because the outcome was both decisive and for Trump, Harris--a normal politician and decent human being--conceded. Thus, the election-law and related issues have been mooted for at least four years.

That is not to say that there are no post-election issues that overlap with my expertise. In the last week, I have fielded questions from reporters, colleagues, students, family, and friends about the fate of the prosecutions against Trump. I wrote about one aspect of those questions last week.

Meanwhile, as we come to learn over the next several months just how much of Project 2025 the second Trump administration will actually attempt to implement, there will be plenty for constitutional scholars to contest and discuss. But for the moment--and much to my surprise--numerous people have asked me about an issue that does not seem immediately pressing: Can Trump serve a third term?

I say the issue is not immediately pressing not only because of the other issues that are or will soon be pressing. I also say that because Trump is older now than Ronald Reagan was at the end of his second term. By election day 2028, Trump will be older than Joe Biden (the oldest person ever to serve as president) will be on his last day in office. A Trump third term would depend on many conditions, including: (a) his being alive then; (b) his desire to serve another term rather than pass the mantle to, say, Ivanka, Don, Jr., J.D. Vance, or some other successor; (c) the extent to which the United States remains a constitutional democracy in which there are real elections; and (d) assuming the U.S. does still have real elections, the extent of the public's appetite for more Trump.

For the sake of argument, let's assume away the potential obstacles. How might Trump wrangle a third term?

One possibility--about which Professor Buchanan has been warning for years and which cannot simply be dismissed given the January 6, 2021 insurrection and Trump's own statements--is that Trump would use  extra-legal means to stay in power. He could attempt another coup to hold power. Or there might still be elections, as one sees in the regimes of other strongmen who first come to power through democratic means, but the results would be a foregone conclusion.

As a technical legal matter, it would not be possible for Trump to follow in the footsteps of the strongmen he admires and by fiat change the Constitution to allow himself a third term. But with a sufficient commitment to authoritarian rule and in the absence of opposition from the military or Congress, one could imagine some means by which Trump and his allies would decree the 22nd Amendment a nullity. Perhaps Congress would pass a resolution declaring that Trump's first term doesn't count because of the Mueller investigation, the House impeachments, and/or other makeweight reasons. Or perhaps Republicans would simply nominate Trump for president and expect--with some justification given the Supreme Court's ruling in Trump v. Anderson--that the courts would not stop him from running for or holding office.

Those paths are clearly unlawful but that doesn't mean we can rule them out. Is there a lawful path by which Trump could circumvent the 22nd Amendment? Alas, there is. I laid it out in this 2000 column arguing for the legal permissibility of a Gore-Clinton ticket. Updated, the notion would be that in 2028, Republicans could run a ticket of Vance for president and Trump for VP. Then, following Vance's swearing in, he resigns, and Trump becomes president. At that point, Trump names Vance (or someone else) as his VP.

The practical risk in such a planned switcheroo is that it could blow up if Republicans don't also win the House of Representatives. In that circumstance, if Democrats hold firm, they can use their power under the 25th Amendment to deny Trump his choice of vice president, leaving that office vacant and thus reducing (by eliminating the tie-breaking vote) Republican strength in the Senate. In these circumstances, if Trump were to die in office (a non-trivial possibility given his age), the Democratic Speaker of the House would become president. But Republicans might be willing to take this risk, especially because they would know before Vance steps down whether they have control of the House. If they don't, Vance could, as a formal matter be president, but Trump would rule through him, as Putin did through Medvedev from 2008 through 2012.

Readers who have not clicked on the link to my 2000 column might still be wondering how the switcheroo doesn't violate the 22nd Amendment. The short answer is that that provision expressly bars candidates from being "elected" to the presidency more than twice but does not bar anyone from serving as president more than twice.

Nor, as I also pointed out in the 2000 column, is the 12th Amendment an obstacle. Its last sentence provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." But, as we have just seen, a person who has twice before been elected president is not ineligible to the office of president; such a person is merely ineligible to be elected to the office of president. And a vice president who takes office as president by operation of Section 1 of the 25th Amendment is not elected president.

Citing the legislative history of the 22nd Amendment, my 2000 column also concluded that the switcheroo maneuver would not violate its spirit. On reflection, I now disagree with that conclusion. However, given the conservative judiciary's continued march towards formalism, I have reason to think that the courts would accept the text-based parsing of the 22nd and 12th Amendments I've offered as against any argument rooted in their spirit. And that's assuming that SCOTUS would even allow that a disqualification claim is justiciable.

Bottom line: Yes, there are both illegal and legal means by which Trump could serve a third term. Now back to worrying about more immediate problems.