THERE ARE LEGAL SCHOLARS WHO ACTUALLY BELIEVE TRUMP COULD SERVE A THIRD TERM

I don't really know why this happened over the weekend:

President Trump did not rule out seeking a third term in office on Sunday, telling NBC News that he was “not joking” about the possibility and suggesting there were “methods” to circumvent the two-term limit laid out in the Constitution.

It's easy to imagine that Trump said this knowing that it would push Signalgate out of the headlines (although coverage of that scandal is fading, and Trump's impending tariffs will be the top Washington story very soon). But I should note that it was Trump's interviewer, Kristen Welker, who brought the subject up, although perhaps she did so because people in Trumpworld, particularly Steve Bannon, urged her to ask about the idea so it would garner headlines.

KRISTEN WELKER: So, when you're jo – I know you're joking about this, but I've been talking to a lot of your allies. They say they're very serious. You know, I talked to Steve Bannon on the record, quite frankly. So, I can just tell you. I mean, he says he's, you know, really seriously looking at potential plans that would allow you to serve a third term.

Trump, of course, couldn't back down -- backing down, in his eyes, would make him look weak, the worst possible sin in his world. But Welker seems more excited to talk about the idea than Trump.

KRISTEN WELKER: So, but I don't hear you ruling – like, in a very serious way, do you rule that out? Are you like, I can't serve a third term, it's unconstitutional? What's your thinking around it?

PRES. DONALD TRUMP: A lot of people want me to do it. But we have – my thinking is, we have a long way to go. I’m focused on the current.

And, a bit later:

KRISTEN WELKER: Okay. So, but, but, sir, I'm hearing – you don't sound like you're joking. I've heard you joke about this a number of times.

PRES. DONALD TRUMP: No, no I'm not joking. I’m not joking –

KRISTEN WELKER: Yeah. Yeah.

PRES. DONALD TRUMP: But, I'm not – it is far too early to think about it.

If I'm guessing right, Bannon planted the thought in Welker's head, and she ran with it. She thought it would be great television. The news-making headlines would be good for NBC and good for her. Bannon saw it as an epic troll and a great distraction.

And I'm guessing that Bannon, or someone else in Trumpworld, fed Welker this scenario:

PRES. DONALD TRUMP: Well, there are plans. There are – not plans. There are, there are methods which you could do it, as you know.

KRISTEN WELKER: Basic– Well, let me throw out one where President Vance would run for office and then would, basically, if, if you – if he won, at the top of the ticket, would then pass the baton to you.

PRES. DONALD TRUMP: Well, that's one. But there are others too. There are others.

You might assume that this is plainly unconstitutional. Most constitutional scholars would agree. But there are dissenters.

In 1999, Bruce G. Peabody and Scott E. Gant published a paper in the Minnesota Law Review titled "The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment." Their conclusion:

Our analysis leads us to the belief that the Twenty-Second Amendment and the Constitution as a whole leave open possibilities for a twice-elected President to resume that Office.... For instance, we have suggested that a President nearing the end of his or her second term and determined to stay in office might run as Vice President with the idea that the President-elect would step aside, allowing the already twice-elected President (and Vice President-elect) to serve a third term without running afoul of the Twenty-Second Amendment's bar on reelection.

The key phrase here is "bar on reelection." The 22nd Amendment doesn't say a president can't serve three terms. It says:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

(Emphasis added.)

The 12th Amendment describes the process by which the electors of the Electoral College are supposed to vote for president and vice president. It was written at a time when electors weren't expected to merely ratify the results of the popular vote in their respective states. It says in part:

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

Peabody and Gant's argument is that the 22nd Amendment prevents a twice-elected president from being elected to a third term, but doesn't prevent a twice-elected president from being president again. In order to determine who's eligible to be president, we have to look at Article II of the Constitution:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In "Two-Time Presidents and the Vice-Presidency," a 2015 paper published in the Boston College Law Review, Dan T. Coenen writes:

... the Article II clause imposes no term limit of any sort on presidential service. Instead, it requires only that a President be (1) a natural-born citizen, (2) at least thirty-five years of age, and (3) a resident of the United States for at least fourteen years. Because twice-before-elected Presidents (such as George W. Bush or Bill Clinton) continue to meet each of these three (and only three) textually specified eligibility requirements, such persons are—according to proponents of the they-can-run position—not “ineligible” to be President for purposes of the Twelfth Amendment. Therefore, they remain “eligible” to seek and to hold the vice-presidency.

His belief?

Some analysts have argued that the Constitution forecloses the possibility that a twice-before-elected President can hold (or at least secure election to) the vice-presidential office. However, the text and history of the relevant constitutional provisions point to the opposite conclusion: A twice-before-elected President may become Vice-President, either through appointment or through election, and thereafter succeed from that office to the presidency for the full remainder of the pending term.

As I've said before, in reference to Trump's attack on birthright citizenship, it doesn't matter whether the vast majority of legal scholars hold one view of what the Constitution says on a particular subject -- if the right-wing mafia wants a different outcome, and if there's any scholarship whatsoever supporting that outcome, our Federalist Society courts will feel free to go with what the activist right wants. Or the courts will just make stuff up on the spot.

I'm not sure we'll even have elections in 2028 -- it seems quite possible that by then we'll be under martial law and elections will be suspended. But if we still have them -- real ones, or (more likely) Orbanesque ones that Democrats aren't permitted to win -- and if Trump is alive and determined to stay in office, I find it hard to imagine that he'll go to the Supreme Court and, in effect, ask permission to run again. That's not his style. Either he'll just run, daring fellow Republicans to challenge him and daring opponents to try to keep him off the ballot, or he'll tell his cultists to vote in the primaries for slates of "uncommitted" conventional delegates who are actually pledged to him. Then in the general election he'll tell them to back a placeholder candidate who pledges to put him back in office. (I don't think he'll trust J.D. Vance for this. I think the ticket will include loyal family members like Lara Trump and Donald Trump Jr.)

All of this assumes that he's alive and more or less functional, and that he hasn't alienated vast swaths of the country by destroying the economy, enshittifying or eliminating social services, and starting batshit-crazy imperialist wars.

I think Trump might want to be president for life because that would be a guarantee that he'll never go to prison, and because the power trip of being a dictator is life-giving to him. But maybe America will be angry enough by then to make this impossible.