How seriously should we take Trump’s talk about a 3rd term? Well, two things we know about Trump: (1) He loves triggering the Democrats and their “news” mafia by making outrageous claims about his plans. (2) He often surprises people by actually trying to follow through on those plans.
So, is there any possible way that Trump actually could serve as president beyond his current term?
Well, yes.
It all comes down to the text of 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 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.”
Trump has already been elected twice, so it is absolutely clear that he cannot be elected president again. The question is whether he could still hold the office of President or act as President for all or part of the term of someone else who was elected President.
Well, let’s go to the text. The 22nd Amendment limits the terms of a person “who has held the office of President or acted as President” – past tense. It is silent about whether a person who has served two elected terms as president can then – after those elected terms – hold the office of President or act as President for a term to which some other person was elected President. Since the 22nd Amendment does not expressly prohibit such service, the default is that it would be permitted – and even permitted without limitation.
So, yes, Donald Trump actually could serve a third term as president under the Constitution. He just could not be elected president again.
So, how would that work? The only feasible way would be for him to become vice president and then succeed to the presidency under the 25th Amendment. That would happen most likely by his running for vice president with a different presidential candidate and that ticket getting elected in the electoral college. (It could also happen by a vacancy occurring in the vice presidency and Trump being appointed to that position and approved by the Senate.) Then once becoming Vice President, if the President resigned or the presidency otherwise were vacated, he could succeed to that office again.
Now, if this ever actually happened, this interpretation of the 22nd Amendment would be tested in the courts and end up in the Supreme Court, and it is an open question whether they would agree with my interpretation. From a textual standpoint, I think my interpretation stands up. From an originalist standpoint, i.e. the intent of the framers of the 22nd Amendment, maybe not.
Could this actually happen in the real world? Well, Trump would have to find a running mate he could trust to step down, and he’d have to convince the American people to go along with an incredibly unorthodox scheme that many would consider to be unconstitutional, so the odds would be against him.
But then again, that’s what everyone said about 2024 too.
NOTE: I’ve been asked whether the 12th Amendment thwarts my theory. My answer is no: The 12th Amendment states in relevant part, “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” If my theory above is correct, then Donald Trump is not ineligible to the office of President. He is only ineligible to be reelected to the office of President. He can still succeed to that office from the Vice Presidency. Accordingly, the 12th Amendment does not thwart my interpretation of the 22nd Amendment.
