TRUMP THIRD TERM?

On April 12, 1945, President Franklin Delano Roosevelt died in the early stages of his fourth term as President of the United States. No prior president had served more than two terms— a precedent set by George Washington, who rejected suggestions that he run for a third term.

Vigorous opponents of Donald Trump today take some solace in the fact that his recent election to the presidency will at least be his last term in that office because in 1947 Congress passed, and the country thereafter ratified, the 22nd amendment to the Constitution, which provided that "no person shall be elected to the office of President more than twice.”

But those Trump opponents are overoptimistic. The 22nd Amendment is not a bar to Trump serving as president upon the completion of his duties on January 20, 2029. It is a bar only to his being elected as president after that day. There remain two other Constitutional routes to his subsequent service as president.

However vaguely connected, a bit of history brings this circumstance to mind. In 1973, my law firm represented the Vice President of the United States, Spiro Agnew, who was under investigation by the Department of Justice for allegedly accepting “pay for play” payments while Governor of Maryland. Whether he could or should be indicted was the subject of much negotiation between us and Attorney General Elliot Richardson. One of our arguments was that Agnew was immune from prosecution while in office because scholars had concluded that a sitting president was immune from prosecution, and therefore a sitting vice president must be similarly endowed. While the DOJ agreed the president was immune (a conclusion recently substantially ratified by a sketchy Supreme Court decision), the Agnew prosecutors insisted the president’s immunity did not spill over to the vice president. 

One of the Attorney General's concerns was that if he accepted our immunity argument, his opportunity to proceed against Agnew might be forever barred by the applicable statute of limitations. We offered to waive the statute during the term of Agnew’s immunity, which had three more years to go, but Richardson, fairly enough, pointed out that at the end of his current term as Nixon's veep, Agnew might run for president and, if successful, could earn another four or eight years of immunity and might even run for vice president after that and effectively run out the clock. Unlikely, but possible.

The vague connection to that bit of history brings to mind the following two Constitutional routes for Trump's post-2029 service as president:

1. He could run for vice president. The popularity that won him the 2024 election might reward his ticket with a 2028 victory. Then, if the president-elect on that successful MAGA ticket, pursuant to an unspoken understanding (wink, wink) were to resign on or after January 21, pursuant to the 25th Amendment, Vice President Trump would become President Trump for the next four years! Again, unlikely for lots of reasons, but let's face it, Trump's entire political history is unlikely.

Or

2. Citizen Trump might remain on the sidelines in November 2028 and add his stature to promoting the election of a MAGA ticket. Assuming a successful campaign, if the newly elected vice president were to resign on or after January 21, 2029, then pursuant to Article 25 of the Constitution, the newly elected MAGA president could nominate Donald Trump as the new vice president. A MAGA Congress as lacking in morality as the current Republican caucus would readily confirm the nomination, Trump would then be the vice president, and would, of course, succeed to the presidency if and when the new MAGA president resigned.

Ugh, what causes my brain to manufacture these fantastical scenarios?  Maybe RFK Jr. is not the only one with a dead worm in his frontal lobe?

A bientot.

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