Trump has spoken of a third term before, usually in a joking tone, and did again at the NRA convention on Saturday, May 18, 2024 (see story here).
But is he joking? Trump has no sense of humor, only uses humor to mock people he doesn’t like, and it provides him with a dodge: He can deflect by saying he wasn’t serious. I would take nothing he says as a joke, and his third-term talk could be a trial balloon, feeling out his supporters on the idea.
It’s not safe to assume he’s not serious. But if he is, and wins in 2024, could he be stopped in 2028?
The 22nd Amendment plainly says, “No person shall be elected to the office of the President more than twice.” (See full text here.) This appears unambiguous, but does it leave a loophole? It clearly applies to non-consecutive terms, so that’s not one. But what if Trump was appointed instead of elected to a third term? This might be a way around the 22nd Amendment term limits.
Sure, it’s implied that under no circumstances can a president serve more than two terms. But implication can be rejected in interpretation. Creative lawyers, of the sort Trump had in his service in January 2021, might imagine a possible opening here.
Trump could exploit that opening by picking a 2024 running mate lacking Pence’s conscience, an absolute loyalist who’ll do what Pence balked at doing (refuse to certify electoral votes), thereby pushing the election into the House, where a majority of the state delegations (they don’t need a House majority, only a majority in 26 states) would vote for Trump, who then could argue he was “appointed,” not “elected,” given the backing of a partisan Supreme Court.
Sound like a horror show? Sure does. But far-fetched? So was Trump’s 2021 coup which failed only because, like the Goldsboro H-bomb (photo below), the last “safety” (i.e. Pence’s refusal) prevented detonation (at this point, don’t forget Trump’s agents tried to hustle Pence into a car and away from the Capitol, undoubtedly so the next-in-line could take over his role; it was a close call indeed).
Trump won’t make the mistake of picking another Pence. He also has several go-to federal judges in place for the next initial go-round in federal courts. And Republicans know how to steer their lawsuits to those judges. Judge-shopping isn’t supposed to exist, but it exists.
Is there another safety switch, one in the states? Think of the Colorado law used to disqualify Trump. It was previously used, successfully, to keep an underage presidential candidate off that state’s ballot. In theory, it also could block a third term candidate. Similar laws exist in other states.
The problem is, the conservative-stacked U.S. Supreme Court ruled that states can’t block a federal candidate for insurrection; from there it’s a baby step, not a giant leap, to a ruling that states can’t block federal candidates on term limits grounds, either; that only Congress can rule on the eligibility of federal candidates. That’s how this bomb could go off.
Pulling it off would depend on the Supreme Court cooperating. Would it go along? Hard to say. Maybe the court conservatives, or a couple of them, have scruples that Trump, his next vice president, and House Republicans don’t have.
I don’t want to find out. Democracy is on the ballot again in 2024, and it had better win.