Don’t Assume Trump Is Joking About a Third Term
He really is looking into it.
There’s a certain zen art to dealing with the Trump era. The trick—usually—is to not spend too much time on social media, to not be too sucked in by the latest tweet or the “daily outrage,” to really only respond to something when Trump actually does it. Speaking personally, I very much try to master this art, but, even so, my heart stopped when I saw the repeated assertions by Trump and various of his acolytes that he was interested in a third term.
The New York Times responded to the latest outrage with what would normally be commendable sangfroid, claiming that it was all impish political strategy to annoy the Democrats and keep them from focusing on what he is doing now. “In private, Mr. Trump has told advisers that it is just one of his myriad diversions to grab attention and aggravate Democrats, according to people familiar with his comments,” Maggie Haberman wrote in The Times in February.
But I’m far from convinced. Trump and his allies have said this enough times that it demands to be taken seriously. And as Trump flouts just about every rule that you can think of—court orders, etc.—it is wishful thinking to imagine that “term limits” are out of bounds for him as well.
Why am I so sure that Trump is not, as The New York Times assures me, joking when he discusses a third term? Well, for one rather literal-minded reason, because he told NBC News “I’m not joking” in a recent interview. That brings us, of course, into one of the finer political arts of the Trump era: the deciphering of Donald Trump’s sense of humor. The theory here—which has gained surprisingly wide-ranging acceptance—is that Trump’s sense of humor is a kind of carefully calibrated ultrasonic instrument designed to infuriate liberals, whereas his supporters can take everything with an easygoing swagger. As a case in point we have Trump’s interview this week from Air Force One, with petulant reporters pressing Trump on his NBC comments, with Trump half-dodging the question and half-characterizing a potential third term as something forced upon him by an adoring public, and with Commerce Secretary Howard Lutnick cracking up in the background even though nothing that Trump was saying was—to my uninitiated ears—particularly funny.
But, like the sort of school bully who’s just kidding right up until the moment he snatches your lunch bag out of your hand (and then assures you afterwards that it was no big deal), Trump’s gags deserve to be taken seriously. And elsewhere in Trump’s orbit senior MAGAists are saying the same thing but with no hint of impishness at all. In an interview for NewsNation, Steve Bannon, the former chief strategist for Trump, claimed that plans were already well underway for a third term. “I am a firm believer that President Trump will run and win again in 2028,” Bannon said. Pressed on the mechanism to get around obvious constitutional limitations, Bannon continued, “We’ve got a lot of stuff we’re working on there. We’re not prepared to talk about it publicly but in a couple of months I think we will be.”
As almost everybody who has written about this issue has noted, the Constitution would seem to be an unassailable barrier to a third term. Specifically, the 22nd Amendment, ratified in 1951, holds, “No person shall be elected to the office of the President more than twice”—and that really should be the end of it. (The amendment, by the way, was adopted by Republicans to stop anything like a repeat of Franklin Roosevelt’s four terms.) And coverage of this issue so far has tended to focus on somewhat technical speculations for how Trump might conceivably get around the ironclad restrictions. In an online video, Peter Malaguti of the Massachusetts School of Law opined, “What I strongly suspect the mechanism is is that he would run with [JD] Vance as the vice president on the ticket and then Vance would probably resign and he would then step up to the presidency at that point.” That maneuver—similar to Vladimir Putin’s run for office in 2008 as a “prime minister” while Dimitry Medvedev was technically “president”—would be an end run around the 22nd Amendment. But it would also run smack into the 12th, which holds that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
In the same call with NBC, Trump acknowledged that he had thought of the presidential-vice presidential switcheroo, saying “that’s one [way]” it could happen, but he echoed Bannon in claiming that there were alternatives. “There are other [methods] too,” he said.
Bannon may have let the cat out of the bag on NewsNation when he said “we’ll see what the definition of term limit is.” That cryptic statement—the Constitution nowhere uses the term “term limit”—points in a couple of directions. One possibility is a somewhat legalistic, and deeply tongue-in-cheek, interpretation of the 22nd Amendment. The argument there would be that the language refers entirely to elections, but that since—as everybody knows—the 2020 election was stolen, Trump has already been elected three times and therefore the 22nd Amendment has already been effectively nullified and it makes no difference if Trump serves yet one more term. Trump actually articulated this in the Air Force One interview, saying, “I have had more people ask me to have a third term, which is in a way a fourth term because the 2020 election was totally rigged so it’s sort of a fourth term in a certain way.”
But the other direction that the Bannon quote points in is more serious and more menacing, which is to just skip the election and to allow Trump’s current term to extend itself indefinitely.
And here we deal with a certain vagueness in the Constitution—which may be the nub of what Bannon is getting at. The highly easy-come-easy-go language of Article II Section 1 of the Constitution, the section dealing with the presidency, says only, “The Congress may determine the time of chusing the Electors.” That provision was sort of kicked down the road until 1845 when the Presidential Election Day Act established the euphonious “Tuesday next after the first Monday in November” as Election Day. But what is done by Congress can be undone by Congress, and a Republican Congress with a Republican president in place could in theory restore to itself the time of “chusing” the electors. In any case, as Michael T. Morley of Florida State University College of Law notes, under current jurisprudence, “federal Election Day laws empower states to postpone or extend federal elections when serious emergencies preclude them from being conducted or concluded on Election Day itself”—with, of course, the definition of an “emergency” being a bit more vague than it might be. Morley writes that “court[s] may also postpone or extend a federal election when necessary to prevent constitutional or statutory violations,” bringing into play the possibility that a friendly Supreme Court, citing an emergency, could postpone the date of an election.
But this whole analysis may be too legalistic and literal-minded for the mentality of the Trumpies. It’s to be noted that, all over the world, sitting executives have undone term limits within their constitutions—citing either their own constitutions or else some overriding emergency. In Turkey, Recep Tayyip Erdoğan did it in several steps, overhauling the parliamentary system to create a presidential system, installing a state of emergency that lasted for two years as opposed to the anticipated three months, and then blowing past his presidential term limits on a highly self-serving reading of the law. In Russia, Vladimir Putin in 2020 graduated beyond his “switcheroo” to pass constitutional amendments giving himself the ability to stay in power until 2036. In Hungary, Viktor Orbán has changed the Constitution ten times since 2013, declared a state of emergency in 2020, and turned Hungary into what Foreign Policy calls “a flourishing dictatorship.”
To the extent that there is a philosophy behind all this it’s Carl Schmitt’s dictum that power belongs to whoever creates the “state of exception.” Trump played into this in his recent tweet, citing an apocryphal quote of Napoleon, that “he who saves his country does not violate any law.” And, as David French recently argued in The New York Times, the “moral superstructure” of Schmitt—above all, his view of politics as inherently adversarial—is something like the secret sauce of Trumpism, its inner core.
The strongest argument against this whole scenario is age. Trump is 78 now. He would be 82 in January 2029. It seems hard to imagine that Trump would try to keep himself in office forever. But to give him his due he’s a spry 78. He’ll fully expect another round of prosecution if he ever leaves the presidency, and Trump doesn’t always take the most realistic view of his own mortality. In remarks in February, he said—jokingly of course—that he’d have a “25-year period” to fiddle with the recently-announced National Garden of American Heroes. As Fox News’ Howard Kurtz writes of the third term chatter, “This is classic Trump. It’s a joke until it’s not.”
And any attempt to insist that 2020 was, after all, a victory (which would make the limits on election wins irrelevant) or, more crucially, any inclination to declare prolonged “states of emergency” or to tinker with the scheduling of Election Day, is a tell that it’s not a joke at all. Kurtz, looking at the same set of evidence as I am, concludes of the prospective third term, “I happen to think [Trump] is trolling the press and won’t do it.” I happen to think that he would like to die in office and will do everything possible—including what Bannon calls “the longshot” of a third term—to make it happen. However it plays out, all of this is not so far in the future. The legal and philosophical maneuverings to legitimize—or to prevent—a third term start now.
Sam Kahn is associate editor at Persuasion and writes the Substack Castalia.
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Thanks for this chilling, threat-packed horror movie. Glad I bought a ticket.
And, like all horror movies, it is ultimately so enjoyable because it can't happen in real life. The only assumption here that fails to get an adequate airing out (because it would spoil the whole movie) is that mere "possibility" of a friendly Supreme Court.
Fortunately for reality, they have shown themselves, time and again, to be serious and very thoughtful guardians of the Constitution, and particularly with respect to the role of the other two branches -- Particularly the Executive Branch. They are willing to give the Executive all the reasonable, and even reasonable-ish leeway the structure of our government requires. But no more.
They also know that any leeway they give Trump will be used by subsequent presidents. And there's the rub. There is no way on earth they could take any of these wild-hair ideas (or others I expect they might cook up) seriously. They are the antithesis of the entire foundation of this country and its governance.
There -- on the steps of the Supreme Court -- is where the rubber meets the road. Yes, there is the possibility that Trump might refuse to abide by a Supreme Court decision. And it may not be on this question, since there are several other strong options bubbling through the courts right now. He clearly wants to test the Executive's limits, and I expect we'll get some kind of a showdown. But I'm betting on the court, and the people of this country who have growing concerns about Trump.
Personally, I don't like indulging Trump in these manufactured fantasies, since that's what he lives for. I can't fault people for giving in to him, though. He's just that enticing to some people. But then, so are all horror movies.
No, he is playing you leftist and media dopes like a cheap fiddle.
He is putting forth that idea to set your hair on fire. To focus on that and not the reforms being made. To take the heat off his cabinet and direct it at him. To create the myth of eight more years of Trump so THAT becomes the focus of the left and the corporatist oligarchy to defeat, rather than his actions and policies over the first four years. It also takes focus off of Vance... the likely new POTUS elected in 2028.