A Third Trump Term?

I wouldn’t bet on the courts allowing Trump a backdoor path to a third term.

Screen capture from NBC’s Meet the Press

On Sunday, Trump told NBC News’ Kristen Welker that “there are methods” that would allow him to serve a third presidential term, despite the Constitution’s two-term limit.

Trump has been musing about a third term for some time, so in many ways this was nothing new. Trump loves to troll the public, and especially liberals, with the idea that he could remain president indefinitely, or that there’s no need for future elections. It sets our collective hair on fire when he does it, so he returns to this theme with satisfaction.

The difference in this case was in Trump’s greater specificity of his “plans.” When pressed on what methods he was actually talking about, Trump let slip just one: JD Vance could win the next presidential election, Trump said, with himself as Vance’s VP, and then resign, handing Trump the presidency.

It’s an audacious idea. It’s repugnant to the spirit of our Constitution and to democracy in general. But is it legally possible?

The language of two constitutional amendments strongly suggests otherwise. Some would say it’s a slam dunk no. But Trump and whoever is advising him are trying to rely on a legal loophole, and because of that we need to pay a bit of attention, if only to put it out of our minds. After all, it was a legal loophole that allowed Vladimir Putin to serve two terms as president, then sit it out for four years as prime minister while his lackey Dmitry Medvedev was “president,” before Putin returned as president four years later.

Trump running Putin’s Russian president playbook should come as no surprise. But I don’t believe it’s going to work here in the U.S.

The 22nd Amendment

The Trump years have forced us many times to dust off the Constitution to see what it actually says. And that’s often when we discover that, in the hands of someone out to exploit its weaknesses, it sadly an imperfect document.

The 22nd Amendment prohibits anyone from being elected more than twice to the office of President. This part is plain as day:

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 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.

So where’s the possible Trump loophole? If you read this part carefully, it says that no one can be elected to the office of President more than twice. Trump argues that he is still within the letter of the Constitution because he could be elected as Vice President in 2028—and then become President through Vance’s resignation. So that restriction shouldn’t apply to him, he claims.

But there’s a problem with this argument.

The 12th Amendment

The 12th Amendment, which sets out the system we still use today to select the President and Vice President, expressly states,

No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Slam dunk, right? Any straightforward reading of that clause should lead to the clear conclusion that because Trump is ineligible to be elected as President again (because he’s already been elected twice), he can’t be elected as Vice President.

Seems pretty clear to most.

Leave it to clever lawyers to create ambiguity. According to some legal scholars, the 12th Amendment talks only about broad “constitutional ineligibility” to the office of President. But, they point out, Trump is only constitutionally ineligible to be elected president a third time. Technically, Trump remains constitutionally eligible to become president by non-elective means.

So what the heck does that mean? Let’s take an example.

Say Trump were to be named Speaker of the House. That’s weirdly allowed by the House rules, even if it would be a total nightmare.

Then let’s say something happened to both the President and Vice President so that they could not serve in office. Through the operation of presidential succession, Trump would be third in line as Speaker of the House (shudder). The 12th and 22nd Amendments say nothing about Speakers not being able to become President by succession, so he would be “constitutionally eligible” to be President and would assume office by way of succession.

So does that fact allow Trump to run as VP? It depends on how you interpret the words “constitutionally ineligible.” As a person, Trump would argue, he is constitutionally eligible: He’s over 35, is a citizen, was born here, and could become President through operation of succession were he in another position.

But as a candidate for VP, opponents would argue, Trump is constitutionally ineligible because he couldn’t run for President, and he can’t make an end run around this rule by running for Vice President.

So who has the better argument?

The Trumpian claim

On the one hand, strict textualists have an argument that the 22nd Amendment does not literally say that a former president is “constitutionally ineligible.” It says only that he can’t be elected again. Thus, they claim, he can be elected as Vice President and then later assume the Presidency.

The best argument that proponents of this view have is that more restrictive language was considered by the drafters at the time of the 22nd Amendment’s passage but ultimately rejected. Courts, and particularly the extremists on this Supreme Court like Justices Alito and Thomas, could hang their hats on that legal peg. After all, the drafters knew how to create broad constitutional ineligibility, but they chose to go instead with a bar on being elected President a third time.

Specifically, the original version, which was approved by the full House, read that “[a]ny person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.”

That would be an outright bar to Trump’s present plans. He has served as President during all or portions of two terms, so no more being President for him. End of story.

That fact that the language changed before passage is something Trump (or rather, his lawyers) will seek to mine. Why change it unless you intended it to be less than a full statement of ineligibility?

There are some good reasons for why this broad language was rejected. For example, it could sweep in situations where a person (say, Vice President Kamala Harris) served for just one day while Biden was having surgery. This actually happened. Perhaps better to focus on people not being able to be elected three times, right? That’s what they were trying to prevent, after all.

As far as I have read, no one actually considered, at least in the debates around the Amendment, the possibility of this weird loophole opening up as a result. But because there is a decisive lack of legal precedent around this language, Trump’s lawyers see an opening, and they would argue that the best course is to stick with the literal text of the Constitution.

No Constitutional “gotchas”

Common sense, along with any reading that tries to stay true to the spirit of the two amendments, would say Trump can’t run as VP and then slip in to become President through a crazy loophole. Critics of backdoor presidencies would argue that the 22nd Amendment was intended to create a new class of ineligibility, along with age, citizenship, and birthplace. It made a twice-elected president outright ineligible, even if it didn’t use that specific word.

It follows, then, that because the 12th Amendment made anyone who is constitutionally ineligible to be President from serving as Vice President, that ineligibility should and must include people who have been elected President twice before.

Think of it this way: It’s as if the 22nd Amendment simply added to the presidential eligibility restrictions on age, citizen and birthplace the requirement that you can’t have been elected twice before. Because, under these criteria, Trump is ineligible to be President, he is ineligible to be Vice President per the 12th Amendment, and therefore he cannot ever run as a VP candidate.

Moreover, the point of the 22nd Amendment was to prevent the occurrence of another dynastic presidency after four terms of FDR. Allowing Trump to return via some loophole would undermine the purpose of the amendment, which is something courts are supposedly there to prevent.

Moreover, the U.S. Constitution should be read as a whole to ensure consistency across its various parts. Allowing Trump a backdoor way to become President again by first being elected Vice President would create contradictions within the structure of the document. One provision, the 22nd Amendment, which broadly prohibits that outcome would be undone by the twisted reading of another, the 12th Amendment.

Finally, the Constitution should be interpreted to avoid illogical results. Here, that result would be that the American people cannot elect a certain individual to the presidency, but they could wind up with the same guy through some wild, unexpected succession.

That. Makes. No. Sense.

Political chaos

If the radical majority on the Supreme Court ultimately greenlit this backdoor route for Trump, it would produce political havoc. JD Vance, or whoever else was playing the Medvedev role, would be “running” but everyone would know it was a sham. Democrats might then try to run someone equally popular as their VP, such as former President Barack Obama, who would suddenly be able to serve again through the same loophole.

This would make a mockery of our system and invite challenges at each state ballot level and then with Congress at the certification stage.

If any argument is going to win over Chief Justice John Roberts and Justice Amy Coney Barrett, it is likely this one. The Court made a big deal about allowing Trump to remain on the Colorado ballot in order to avoid the chaos and uncertainty that would result if he were stricken from it. It’s hard to see them allowing him to run as Vice President and proceed to throw the whole system into the trash compactor.

Bottom line? Trump isn’t likely going to be allowed to run in any capacity that allows him a third term, whether through election or succession. That won’t stop him from arguing that he should be allowed to, if only because he knows it will upset many on the left to hear it.

Now that you know his best argument and why it likely won’t succeed, I hope it will be easier for you to ignore this threat as one more layer of distraction.