Donald Trump has openly mused about serving an unconstitutional third term as president, and a legal analyst said it's not too early to start worrying.
The newly inaugurated president is "notorious for bending norms and breaking laws," wrote Politico legal editor James Romoser, and while the U.S. Constitution's 22nd Amendment makes clear that "no person shall be elected to the office of the President more than twice," there are four scenarios where he might carry out "the stuff of liberal nightmares and MAGA dreams" and hold onto power for at least four more years.
“Anyone who says that obviously the 22nd Amendment will deter Trump from trying for a third term has been living on a different planet than the one I’ve been living on,” said Ian Bassin, an associate White House counsel for Barack Obama who is now executive director of the nonprofit advocacy group Protect Democracy.
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Rosomer mapped out four paths Trump could try to remain president in spite of the constitutional prohibition.
"He could generate a movement to repeal the 22nd Amendment directly," Rosomer wrote. "He could exploit a little-noticed loophole in the amendment that might allow him to run for vice president and then immediately ascend back to the presidency. He could run for president again on the bet that a pliant Supreme Court won’t stop him. Or he could simply refuse to leave — and put a formal end to America’s democratic experiment."
Each path presents serious political, legal and practical impediments, Rosomer wrote, but Trump has repeatedly talked about serving a third term, and as recently as last weekend, and while he has seemingly eluded his criminal cases by getting re-elected, those charges could be revived when he leaves office and he still faces a plethora of other legal problems – and he simply might prefer to hold onto his power.
“Presidents tend to like their jobs, and there have been many attempts for them to overstay,” says Mila Versteeg, a law professor at the University of Virginia who co-authored a study that found one-third of the world's leaders tried to circumvent term limits in this century. “In the countries where this has happened, the rule of law is much weaker than in the United States, but we shouldn’t dismiss it as impossible or unimaginable. It has happened around the world.”
Rep. Andy Ogles (R-TN) has already introduced a constitutional amendment that would allow Trump, but not Obama or Bill Clinton, to seek a third term, and his supporters are talking like it's a done deal.
“People are already talking about changing the 22nd Amendment so he can serve a third term,” said Texas Lt. Gov. Dan Patrick in a social media post Trump later shared. “If this pace and success keeps up for 4 years, and there is no reason it won’t, most Americans really won’t want him to leave.”
He could try to exploit a loophole in the 22nd Amendment by having whoever wins the 2028 Republican nomination – for example, J.D. Vance – choosing him as running mate and then resigning on Day One to make Trump president, although the 12th Amendment states anyone who “constitutionally ineligible to the office of President shall be eligible to that of Vice President.”
“You could make a case that it’s pretty clear that a twice-elected president is still eligible,” said Bruce Peabody, a law professor at Fairleigh Dickinson University. “You could also make a case that it’s murky. But I don’t find the argument terribly convincing that it’s a slam dunk that he isn’t eligible.”
Trump could just run for a third term and dare anyone to stop him, and Rosomer wasn't so sure that anyone would step up.
"Would the Republican National Committee block him from seeking the party’s nomination for 2028?" Rosomer wrote. "Surely not, if he still dominates the GOP. Would states refuse to put him on their ballots? Some certainly would, but that would spark litigation. The issue would then wind up at the Supreme Court — a court that is already quite sympathetic to Trump’s interests and, in four years, may be populated with even more Trump appointees than it has today."
That's not so implausible, Rosomer wrote, because many legal scholars believe he was constitutionally ineligible to run in 2024 because the 14th Amendment disqualifies anyone who engaged in an insurrection from holding public office, but the U.S. Supreme Court blocked a ruling by Colorado's high court that removed him from that state's ballot.
"That ruling was widely seen as being at least partially results-driven," Rosomer wrote. "Whatever the legal arguments, the justices simply were never going to let individual states kick the leading Republican candidate off their ballots. The same calculus might apply if Trump tried to run again in 2028."
Trump could simply refuse to leave office in January 2029, regardless of what happens in the 2028 election – if there even is one.
"It’s hard to predict what that would look like (though Trump’s attempts to cling to power after the 2020 election might offer some clues)," Rosomer wrote. "One obvious move in the autocrat’s playbook is to cancel an election by declaring some sort of national emergency. The president, of course, has no legal authority to call off or postpone elections, but that doesn’t mean Trump wouldn’t try it anyway — perhaps by seizing on a natural disaster or even starting a war. Alternatively, perhaps Trump would allow the 2028 election to take place with other candidates but declare the outcome rigged and decide to stay in power himself."
"The last time Trump tried to cling to the presidency, he used lies about election fraud to undermine the 2020 results and then encouraged his supporters to go 'wild' in Washington the day his defeat was certified," Rosomer added. "Four years from now, could he pursue a power grab even more brazen and lawless? It’s an extraordinary thing to contemplate."
