Donald Trump’s Third Term
The 22nd Amendment of the U.S. Constitution states the following:
“No person shall be elected to the office of the President more than twice . . .” (emphasis added)
This provision seemingly prohibits President Donald Trump from being elected to the office of President again. From selling 2028 campaign merchandise, to restructuring the White House to his personal preferences, to open mulling, to consolidating Federal power in himself, it is clear that he has every intention of staying in office past his current term.
The key term (and weakness) in the 22nd Amendment is the term “elected”. Speculation has been raised as to ways he could stay in office past 2029 without being elected. The most popular theory on the internet is to run some lackey (e.g., Vice President J.D. Vance [R] or Donald Trump, Jr.) as the Republican Presidential Nominee in 2028 with President Trump as his runningmate. Once they are inaugurated, the lackey will promptly resign and Trump will ascend to the Presidency, under the provisions of Article II and Amendment 25 of the Constitution.
This is, of course, preposterous on its face, since only a complete fool of an acolyte would invest 16 – 18 hour campaign days, seven days a week, for over two years campaigning for the most powerful job in the world, only to completely surrender it to someone with a sterling reputation for backstabbing loyalists. None of the power-hungry parasites orbiting Trump’s world would do this. Variations of this theory (e.g., Trump is elected as Speaker of the House in 2029 and ascends to the Presidency when both the newly elected Republican President and Vice President resign) are even more ludicrous.
Finding a loophole based on the term “elected” is, however, still under consideration. Trump has, over both his previous and current terms, stretched the U.S. Constitution to its breaking point, without rescinding it entirely (though he would dearly love to). Assuming he continues this mode of operation and does nothing drastic (e.g., following the example of a recently disgraced South Korean President who tried to impose martial law), he will need to find another path to retain office.
Thanks to Alan Dershowitz, he has one now. As reported by The Hill (originally reported by the Wall Street Journal), in a forthcoming book (which I highly recommend NOT to purchase), Dershowitz makes the case that the most likely path for Trump comes from these provisions of the 12th Amendment:
“The person having the greatest number of votes [from the Electoral College] for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”
To illustrate, in 2028, if a significant number of electors, elected to the Electoral College on Republican slates (i.e., people who pledged to vote for the Republican Presidential ticket), could either abstain to vote or cast their votes for someone else (assuming their state does not have anti-faithless elector laws), causing no candidate to have the necessary 270 electoral votes to win the presidency (since 538 electors would have been appointed to the Electoral College). When this occurs, the House of Representatives, under Article II of the Constitution, selects (not elects) the winner among the top three candidates who received electoral votes (voting is conducted by State).
To provide an example, assume the 2028 Democratic Presidential Ticket wins 226 electoral college appointments and the Republican Presidential Ticket wins 312 (the same as in 2024). If, say, 75 of those Republican electors abstain from voting, then the actual votes cast will be 237 for the Republicans and 226 for the Democrats, both short of the 270 majority of the electors appointed (538). The House of Representatives would then hold a contingency election to determine which candidate becomes President.
If Trump is among the top three recipients of the electoral votes cast (either as the Republican nominee or the recipient of “faithless elector” votes), Dershowitz makes the case (albeit with skepticism) that Trump could be considered in the House’s contingent election and, if he won this election, could retain the Presidency, because he was selected by the House of Representatives, rather than elected.
Of course, the most glaring counter-argument to this is that the contingent election is an election, wherein the Congressional delegations of each State vote to determine who will be President (albeit limited to the top three candidates who received electoral votes). Thus, it is not a selection, but an election and the restrictions of the 22nd Amendment still apply.
But pushing interpretation and boundaries of the Constitution is Trump’s method of operation. If Republicans have control of the House of Representatives in 2029 (it would be the new congress, elected in 2028), the only thing to stop his inauguration at such point would be the 6 – 3 conservative Supreme Court, who may be disinclined to intervene based on its precedent of not interfering in the workings of the Legislative and Executive Branches. The end result may be another term of Trump or a full-fledged Constitutional crisis.
There are currently barriers which may prevent such an event from happening, such as “anti-faithless elector” laws (i.e., laws which prohibit electors from voting for anyone other than the candidate for which they pledged to vote) and ballot access restrictions which prohibit candidates who are constitutionally barred from being elected for President from being listed. There are certainly workarounds to these, though the most straightforward case would be for Republican State Legislatures to relax these requirements between now and 2028 (perhaps one of the purposes for why Dershowitz is publishing a book on this subject in 2026 is to spearhead this effort).
One other thing which should not be overlooked is that contingency elections can be extended perpetually (despite what was erroneously conveyed in a certain episode of Veep). There have been two contingency elections in U.S. history. The one between Thomas Jefferson and Aaron Burr in 1800 took 36 ballots to be decided. Contingency elections can also occur in the case of the Vice President (albeit under slightly different rules). If there is a contingency election for both offices and they are thrown into chaos, with no candidates winning the necessary number of Congressional votes, then the 22nd Amendment stipulates the following:
“. . . the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
Under the Presidential Succession Act of 1947, this would be the Speaker of the House. The Constitution promulgates the office, but does not specify who can be Speaker, thus leaving open to interpretation as to whether or not the Speaker must be a member of the House. It is possible (again, with creative interpretations) for a Republican House of Representatives to elect Trump as Speaker. He would then become “acting President” if the contingency elections extend beyond noon on January 20, 2029 and remain in such capacity until there is a resolution. Because Congress will not be able to function until the contingency elections are resolved, he may take this chaotic opportunity to rule by fiat through Executive Orders, or declare a “national emergency” due to the ensuing Constitutional crisis.
If the contingency elections are in chaos, he would become “acting President” until the elections are resolved. An added bonus is that if the contingency elections are in chaos and Congress cannot perform its functions, he may take this as an opportunity to rule by fiat through Executive Orders or to assert special privileges to the Presidency due to a Constitutional crisis constituting a “national emergency.
This latter example is far-fetched, but it is also not outside the realm of possibility. There is a very real danger, under any scenario, that Trump will use the path of least resistance to stay in office and continue his assaults on the Constitution, until it is completely destroyed.
Start Planning Now
For those of us who are still loyal to the U.S. Constitution and the individual rights it protects, the best protection against such shenanigans is to ensure that no Republicans are elected to office in 2024 . . . but that is no longer possible. This author is still convinced that Trump will, when he believes power has tipped in his favor among the military and Federal enforcement agencies, attempt to overturn election results which are not favorable to him. This may include an attempt to “suspend” the Constitution and reign indefinitely.
However, this is extremely risky and Trump does not take risks. He will choose the fork over the knife to eat his cake, if that is an option. Trying to win a contingency election may end up being his preferred approach, with a “suspension” as an alternative backup plan.
The next best protection is to ensure that no Republican is elected to any office in 2026 – particularly those State-level offices which oversee elections (e.g., Secretary of State) – and hope that Trump does not try to seize voting machines (likely with the muscles of ICE) and claim the elections were rigged. The disconnect of Trump’s policies and statements from reality are so stark that the public is quickly souring on him. True patriots must capitalize on this opportunity and fight to ensure that Trump never, ever serves a third term.
This is, of course, news to no one. How true patriots can win elections in 2026 is beyond the scope of this article. Outside of election science, preparations should be made for legal challenges against Trump being allowed on State ballots in 2028 due to ineligibility, which should culminate in the Supreme Court weighing a decision before a contingency election occurs. Doing so will circumvent any Constitutional crisis and will, at least, set the battlefield so that the opposition knows how to fight and where.
