Last week was an especially good one for those floating the dubious idea of a Trump 2028 campaign. President Donald Trump’s sometime adviser Steve Bannon assured the top two editors of the Economist that Trump would remain president after his term expires on January 20, 2029.
Another sign Trump might be planning to hang around for a third term came when he demolished the East Wing of the White House to make room for a Mar-a-Lago north, complete with ballroom. And don’t forget that he’s also having the Boeing 747 gifted by Qatar outfitted as a new Air Force One.
Those two gigantic, time-consuming projects seem to many people like the kinds of things you don’t embark on unless you intend to use them for a while.
Asked by Edward Carr, deputy editor of the Economist, if there needed to be a third Trump term, Bannon said, “Well, he’s going to get a third term. So Trump is going to be president in 2028 and people just ought to get accommodated with that.” Bannon argued that a third term was required for the MAGA movement to complete its work and that Trump is “an instrument of divine will.”
Traveling on the current Air Force One, Trump was asked on October 27 about the idea of running for a third term. He said, “I would love to do it.”
It wasn’t a huge surprise that Bannon predicted a third Trump term in his meeting with the Economist. He said the same in a public conversation with the Financial Times’ Edward Luce five months ago.
Before diving into the prospect of a third term, let’s stipulate that it’s 2025 and no one knows what kind of shape Trump and the country will be in three years from now, when the next presidential election is scheduled. Would Trump want a third term? Would voters give any Republican their support if the second term continues on its unpopular and unconstitutional path?
Bannon was accurately described by the New York Times as “the pro-Trump podcaster and convicted fraudster who briefly served as President Trump’s White House chief strategist in his first term.” Trump issued him a pardon and occasionally talks to him, but it’s not clear how much influence Bannon really has.
But he is a quote machine for journalists and an eager player in the MAGA game of trying to “own the libs.” What better way to mess with the heads of Trump’s opponents than to frighten them with the idea that he could be in office until 2033? If, alternatively, Trump leaves the White House, there goes a big part of Bannon’s relevance.
In any case, there’s one not-so-little problem for those seeking a third Trump term: The 22nd Amendment of the U.S. Constitution. It says:
“No person shall be elected to the office of the President more than twice…”
Asked about that amendment, Bannon said, “There’s many different alternatives. At the appropriate time, we’ll lay out what the plan is, but there’s a plan and President Trump will be the president in 2028.” (He misspoke, since Trump is already slated to be the president in 2028 on the strength of his second term, which actually ends January 20, 2029.)
Defying the amendment
Trump and the Republican Party could indeed try to defy the two-term prohibition. It’s not hard to imagine that some election officials in Trump-friendly states would place him on the 2028 ballot.
What is hard to imagine is that any court, even the U.S. Supreme Court with its 6-3 conservative majority, would fall in line behind a complete violation of the 22nd Amendment.
The court’s conservatives have rallied behind the notion that the Constitution should be interpreted according to its original meaning and intent.
The original intent of the 22nd Amendment was clear. It was the result of a consensus among Republican office holders, with the support of some Southern Democrats, that no president should be allowed to win the presidency “more than twice.”
No amount of digging by judges into congressional debates on the 22nd amendment could yield an “originalist” ruling that would allow a president to be elected to a third term. Of course, anything is possible with a court that has given Trump absolute immunity in many spheres and hasn’t materially slowed down his march to autocracy in the second term. But still, such a complete abrogation of the Constitution seems unlikely.
Could the Constitution be amended to void the 22nd Amendment? Yes, but it would take an unachievable two-thirds of Congress and three quarters of the state legislatures to make that happen. Even if the GOP had the votes, and it does not, the timeframe would be a challenge.
So what is Steve Bannon talking about when he says there’s a plan for a third Trump term?
The likeliest plan would be for Republicans to nominate Trump as vice president, with the idea that whoever was at the top of the ticket, perhaps J.D. Vance or Donald Trump Jr., would agree to resign after the election and allow Trump to be sworn in as president. Trump Sr. would not be “elected to the office of the President” a third time, but he would be president.
The elected president, Vance or Trump Jr. or some other MAGA figure, could be assured of being nominated by third-term Trump to the vice presidency, assuming Republicans had the votes for it in Congress. That would be the “corrupt bargain” of all time, but on paper it appears possible.
In some ways, it’s akin to what Vladimir Putin did when he managed to get around the term limit on the Russian presidency by having Dmitry Medvedev run for president, with Putin as prime minister. Putin remained the supreme leader of the country, even though he wasn’t president. (Putin, who returned to the presidency in 2012, has since signed a law that allows him to remain in that office until 2036.)
Which also raises the possibility that the titles don’t really matter. Trump could simply run the country from the vice presidency, with the “president” being a figurehead. For a time during the George W. Bush administration, it appeared as if Vice President Dick Cheney would do just that.
Why is there a 22nd Amendment?
George Washington set a pattern that lasted for nearly 150 years when he chose to retire after his second term as president. (Ulysses S. Grant attempted to run for a third term but he didn’t get the nomination.)
The George Washington precedent was shattered in 1940 when President Franklin D. Roosevelt sought and won a third term. (A desperately ill FDR won a fourth term in 1944 but died the following spring while in office.)
The Roosevelt years were traumatic for Republicans, who had only a little more power in Washington than the Democrats do now under Trump’s presidency. Many conservatives viewed FDR as a power-hungry demagogue.
They had tried and failed to get voters to take the two-term issue seriously as a reason to defeat FDR. But when they won control of Congress in 1946, and gained the support of dozens of southern Democrats in Congress, they finally had the votes to pass a term limit.
Republicans cast it as a safeguard against presidential overreach. As the New York Times reported in 1947, “Representative Earl C. Michener, of Michigan, chairman of the Judiciary Committee, saw a long tenure as enabling the Chief Executive to get too firm a grip on the Government machinery, leading to ‘irresponsible bureaucracy’ and ‘over- concentration of power.’ A long-term President can gain influence over Congress and the judiciary as well, he maintained.”
Another Republican, Senator Alexander Wiley of Wisconsin, “testified that an amendment was necessary because ‘too long occupancy of the Presidential office always makes for danger of dictatorship,’” the Times wrote.
Most Democrats were opposed to the term limit. “Representative Adolph Sabath, Democrat, of Illinois, said he had heard Republican members of the House say the pending matter was ‘an anti-Roosevelt resolution.’”
Referring to FDR, Sabath said, “My God, can’t they let the man rest in peace?”
After Congress approved the term-limit resolution, it was sent to the states. Minnesota’s ratification in February, 1951 made it the 22nd Amendment.
The Veep route
So can a president who has served two terms run for the vice presidency and move up to the presidency if a vacancy occurs?
In January, 2015, professor Dan T. Coenen of the University of Georgia law school, published a law review article examining that very question.
He concluded that the answer was yes, despite potential conflicts with the 12th Amendment provision that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” There are other influential legal scholars who disagree with Coenen’s analysis.
His article was published five months before Donald Trump rode down the Trump Tower escalator and declared for president.
The law professor charmingly bracketed his conclusion with quotes from two songs on Bob Dylan’s 1965 album, his first using electric instruments: Bringing It All Back Home.
One of the songs quoted was Maggie’s Farm: “I got a head full of ideas that are drivin’ me insane.” Indeed, anyone fighting their way through the complexities of his law review article would likely sympathize with that quote.
Never say never
Coenen went on to say:
Some observers are sure to declare that no party convention would ever choose a former two-term President to run for the vice-presidency. Indeed, they might note that the very swirl of legal complexities revealed by this Article confirms the soundness of this prognostication. But if history teaches us any lesson at all, it is to never say never. It may be that no prior-two-term President will seek the vice-presidency in our next presidential election. But someday, one likely will.
And when that happens, Coenen concluded, his reading of the law shows that “(1) America’s voters can legally place that person in the vice-presidency; (2) that person can later succeed from that office to the presidency; and (3) if such a succession occurs, no cap on the duration of resulting presidential service will inhibit that person from serving out the full remainder of the term.”
Trump discussed the vice presidential workaround while talking to reporters on Air Force One on October 27. “I’d be allowed to to do that,” he said, but added that he would not pursue the option. “I think it’s too cute. I think people wouldn’t like that…It wouldn’t be right.” Some might see those remarks as a way of floating a trial balloon to see how people react.
Of course, if Trump could do the veep workaround to get back to the White House, then so could Barack Obama.
The other Bob Dylan song quoted in the law review article was Subterranean Homesick Blues:
“You don’t need a weatherman to know which way the wind blows.”
Jackie Kennedy would have been shocked
On Valentine’s Day in 1962, Jacqueline Bouvier Kennedy gave the world a televised tour of her home, the White House. Eighty million people saw the First Lady, in pearls and a bouffant hairdo, describe the history of th…
(For the Bannon interview with the Economist, click here. And here is the Financial Times interview.)
Don Jr. at top of ticket and Dad as veep? What if the younger did not step aside and the elder persuaded Attorney General Bannon to sue the son? Please consult your experts.
If you take the current incumbent both literally and seriously, a narrow reading of the 22nd amendment would mean he is not eligible to be president even now. That is, having been elected president a second time in 2020 (in his mind, which is the only one that matters), he would have had no right to be elected for a third time in 2024. So much for wishful thinking, or for wishing that mere words on a page might restrain such a man as this.