It is noon in Washington on Saturday, January 20, 2029. Inauguration Day. A bearded man steps forward in front of the US Capitol and raises his right hand, placing his left on the Bible.
“I, James David Vance, do solemnly swear…” Moments later, with a knowing smile, the new President of the United States declares: “I resign.”
His running mate embraces him in a bear hug. The crowd of hundreds of thousands on the National Mall erupts in cheers of “Trump, Trump, Trump” and “Four More Years.”
Donald Trump has become President for a third time.
This sounds like a conspiracy theory… After all, as everyone with a passing knowledge of the Constitution knows, the 22nd Amendment limits presidents to two terms.
But could a scenario where Trump remains in the White House beyond that really happen? The surprising answer from experts is… yes.
In fact, the path for Trump to serve a third term – and potentially a fourth until January 2037 when he would be aged 90 – is not only possible, it is simple, thanks to a glaring loophole in the amendment.
The idea of exploiting this loophole has long been percolating in academic circles, behind the scenes in Congress and the White House, and recently among Trump’s most fervent supporters.
Carrying it out would not require an army of lawyers to perform arcane legal acrobatics with the Constitution. Instead, the move would hinge merely on the interpretation of one word – “election” – in the 22nd Amendment and the loyalty of one man – Vance. It would also require Trump to have enough popular support to win for a third term at the ballot box.
The loophole in the 22nd Amendment is set out in a 1999 Minnesota Law Review article co-authored by Professor Bruce Peabody and titled “The Twice and Future President.”
It outlines how the Amendment has been subject to “widespread misunderstanding,” and concludes that the idea any twice-elected president is “constitutionally prohibited” from serving again is “decidedly incorrect.”
According to the paper: “We contend that the Twenty-Second Amendment proscribes only the reelection of an already twice-elected President.”
The key phrase in the Amendment is – “No person shall be elected to the office of the President more than twice…”
It is argued that this means a twice-elected president would not be barred from later reassuming the office due to the resignation, or death, of another president.
Trump could therefore run for Vice President, with Vance as an openly recognized nominal figure at the top of the ticket. Once he is sworn in Vance could then resign, allowing his Vice President – Trump – to step into the office. The same procedure could be used in multiple elections.
To win a fourth term Trump would simply have to resign the presidency before the 2032 election and become the running mate of a nominal presidential candidate, be that Vance or someone else.
Opponents could challenge such a move in the courts, arguing it breaches the 22nd Amendment. But Professor Peabody reveals it would be “pretty hard” for the Supreme Court to undo.
Any decision would be likely to be based on the definition of the word “election” rather than what the authors of the 22nd Amendment intended.
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