How Trump Could Try to Serve a Third Term

This professor says there’s an easy legal route.

Dwight Eisenhower with his successor, John F. Kennedy. (Photo by the Eisenhower Library)

Donald Trump isn’t the first president to want a third term. In fact, most of our modern two-term presidents have mused about extending their time in office.

Bill Clinton said in 2000 that he “probably would have run again” if he could. Ronald Reagan said in 1987 that he wanted to “start a movement” to repeal the 22nd Amendment, which prohibits a president from being elected to the office more than twice. (Clinton has also said the amendment should be revisited.)

The president who appears to have looked at this most closely was Dwight Eisenhower, who told reporters in 1960: “The only thing I know about the presidency the next time is this: I can’t run. But someone has raised the question that were I invited, could I constitutionally run for vice president, and you might find out about that one.”

While the 22nd amendment barred him from being re-elected to the presidency, Eisenhower suggested, perhaps he could seek the vice presidency, and then serve as president if he succeeded to the office.

A “highly qualified source” later told the New York Times that the president was only “having some fun.” But Eisenhower appeared to be at least somewhat serious about the idea: two weeks later, he told reporters that his attorney general had prepared a report on whether he could run for VP. The conclusion was that it was “absolutely legal for me to do so,” Eisenhower said, although he never actually waged a bid for the post.

Now, more than six decades later, we once again have a president joking about a third term. Or is he?

“A lot of people want me to do it,” Trump told NBC News last month. “But, I mean, I basically tell them we have a long way to go, you know, it’s very early in the administration.”

“I’m not joking,” Trump insisted. He even said several “methods” existed by which he could remain in the White House, including the same one floated by Eisenhower all those years ago: running as someone else’s vice president, and then becoming president if they resigned.

This idea may sound fanciful, but at least one expert has been studying it for decades — and he thinks Trump would be on legally safe ground. Bruce Peabody, a political science professor at Fairleigh Dickinson University, first considered the possibility in 1999, when he and a co-author rigorously examined the idea in a 70-page paper.

“We were constitutional law nerds,” Peabody told me in a recent interview, interested in “constitutional oddities.” The idea of a two-term president returning to the office through the vice presidency seemed to fit the bill.

Here’s Peabody’s argument, which Republicans would likely try to use if Trump decided to seek another term.

“Start with the text,” he told me. OK, here’s the pertinent part of the 22nd Amendment:

No person shall be elected to the office of the President more than twice.

“It’s both specific about the means to which this person is restricted and the office to which they’re restricted,” Peabody said. “So that’s the beating heart of the 22nd Amendment.”

But, “it turns out there’s lots of other ways that a person can become president” without being elected to the office, he pointed out.

In their 1999 paper, Peabody and Scott Gant came up with six:

1. Being elected as vice president and then becoming president because the president dies, resigns, or is removed.

2. Being elected as vice president and then becoming acting president under the 25th Amendment.

3. Being elected as vice president and then becoming president if the president-elect dies before taking office.

4. Being elected as vice president and then becoming acting president if no President is chosen before their term begins.

5. Being speaker of the House (or another position in the line of succession) and becoming president if the president and vice president both die or resign.

6. Being chosen by the House of Representatives to serve as president if no candidate receives a majority of electoral votes.

Their conclusion was that the language of the 22nd Amendment doesn’t foreclose a two-term president serving a third term through any of those pathways.

The best counterargument can be found in the 12th Amendment, which says:

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

Does that bar a two-term president from the vice presidency? It’s not clear. The Constitution clearly states that a person is only “eligible to the Office of President” if they are a natural-born citizen, at least 35 years old, and have lived in the U.S. for 14 years. But the 22nd Amendment doesn’t say anything about eligibility to be president; it only bars two-terms presidents from being elected president.

It leaves unanswered the question of whether a two-term president who becomes president by other means should be considered ineligible for the office (and, therefore, for the vice presidency as well).

Interestingly, Peabody and Gant found, the version of the 22nd Amendment that was originally passed by the House would have cleared this up. It read:

Any 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.

This would have clearly placed two-term presidents within the group of people ineligible to become vice president under the 12th Amendment.

But the final version of the 22nd Amendment was revised in order to give more flexibility to vice presidents who ascended to the presidency and then served “portions” of two presidential terms. In the editing process, the part about being “ineligible to hold the office of President” was taken out.

And thus, a gap opened up between the 12th Amendment (which makes someone ineligible to be vice president if they can’t serve as president) and the 22nd Amendment (which prohibits a two-term president from being elected president). And that’s the gap Trump could slip through to be elected as vice president and then ultimately serve as president if his ticket-mate resigns, Peabody argues.

Some scholars maintain that, even if the text of the 22nd Amendment is vague on this point, the “spirit” of the measure is clear: no one should serve a third term in the Oval Office. Peabody disagrees.

He notes that the authors of the amendment had an opportunity, with that first draft, to establish such a clear prohibition. They chose not to. And, he points out, they opted to use language about election, instead of eligibility, precisely because they were aware that there were other routes to the presidency besides the ballot box. (Although they were thinking of people who became vice president and then served two terms as president, not people who served two terms as president and then became vice president.)

I came away from my interview with Peabody partly convinced and partly not.

In some ways, this question mimics one of the debates that has split the conservative wing of the Supreme Court in recent years: the clash between textualism (using the exact words of a statute to interpret it) and originalism (relying on the words of a statute as they were understood when they were written). Justice Clarence Thomas is an originalist, for example; Justice Neil Gorsuch is a textualist.

Peabody’s argument about the “spirit” of the 22nd Amendment notwithstanding, I do believe that the authors of the amendment understood it to bar someone from serving twelve years in office. But I also think, as Peabody does, that looking strictly at the text of the amendment, a three-term president is possible.¹

Ultimately, the question would probably come down to which interpretation would be embraced by the Supreme Court.

I’m skeptical Trump will take it that far, though. For one thing, he’d be 86 at the end of a third term in office. For another, this whole scheme relies on a lot of trust: if Republicans were to nominate Trump as vice president in 2028, what happens if the Supreme Court rules he can’t be on the ballot in the fall? Or if Congress refuses to a certify a Trump vice presidential victory in January? It seems like a risky political move; if it failed legally, Republican would be left scrambling to name a new VP.

Or, even if it works, what if Trump’s running mate refuses to follow through with the scheme and doesn’t resign once they take office? What is Trump going to do then, spend his early 80s breaking tie votes in the Senate?

It seems to me that Trump’s 2028 trial balloon is much more about two things:

1. Trolling Democrats and giving them one more thing to be angry about.

2. Making him seem like less of a lame duck, because the political world thinks he might try to seek another term. That way, he seems more powerful for longer and has the ability to freeze the 2028 GOP field, preventing Republican from jockeying to succeed him until he formally “withdraws” from consideration.

But Peabody says that the question is still worth considering — no matter what Trump does in 2028.

That gap between the 12th and 22nd Amendments? Peabody refers to it as a “constitutional interstice,” and he thinks these sort of loopholes are important to consider.

“If most people concluded that the 22nd Amendment shouldn’t allow for these maneuvers, then in an ideal world, the correct mechanism would be constitutional amendment,” he told me.

But that requires support from two-thirds of Congress and three-fourths of the states, a bar so high that both parties have stopped even trying to meet it. “We haven’t had a normal constitutional amendment since 1971,” Peabody pointed out. (The most recent constitutional amendment, the 27th, was officially approved in 1992, but its ratification process began in the 1790s. A college student dug up the amendment for a term paper and pointed out that it could simply pick up its ratification where it left off. The amendment before that, the 26th, was approved in 1971.)

In that vacuum, many facets of our system that live on the uncomfortable border between norm and law — including, Peabody argues, a president serving a third term — end up lingering as question marks, or worse, ticking time bombs. The Trump era has proved this as much as anything, and yet efforts to amend the Constitution remain few and far between. It’s “better to think and argue about” these loopholes now “rather than it coming up and being surprised,” Peabody said.

“We need to face up to what the Constitution is,” Peabody added, “and either say we’re comfortable with it — or we need to fix it.”

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The day ahead

• President Trump will undergo his annual physical at Walter Reed National Military Medical Center this morning. Later, he will travel to Mar-a-Lago, where he will spend the weekend.

• The House and Senate are out until April 28.

• The Supreme Court has nothing on its schedule.

1. It’s worth noting here that some in the political world used to be more open to Peabody’s interpretation of the law, before Donald Trump got involved.

One example I surfaced in my research: back in 2006, the Washington Post ran an article about the idea of Bill Clinton serving as his wife’s vice president. “On its face, [the 22nd Amendment] seems to suggest that Clinton could be vice president because he is only barred from being elected president a third time, not from serving as president,” the article said. It even cited the paper by Peabody and Gant. “VP Bill? Depends on Meaning of ‘Elected,’” the headline read, a clever Clintonian nod.

That article was written by a reporter named Peter Baker. 19 years later, Baker is now chief White House correspondent for the New York Times. Last week, he wrote another piece on the idea of a two-term president returning to a national ticket. This time, the headline took a very different turn: “President’s Third Term Talk Defies Constitution and Tests Democracy.”

Baker’s new article acknowledged the question of whether Trump could be elected vice president and then president, but wrote, “Such a debate is esoteric and, to some, a pointless distraction,” despite the fact that he once dedicated a whole article expressing openness to the idea.

As I always say, it’s important when wrestling with legal questions to base your judgements on the law, not on the political context of who would benefit or who wouldn’t at the particular time you’re looking at the question.