Third Time’s the Charm
From the Boiling Frogs on The Dispatch
You wouldn’t know it from reading this newsletter on most days, admittedly, but it’s possible to be too alarmist about Donald Trump.
For instance, despite being every inch a Never Trumper in 2020, I remember watching this ad in the final days of the campaign and bursting out laughing.
It wasn’t the prospect of Trump conniving to cling to power that I found absurd. That was plausible, as the country would soon discover.
What was absurd was that the Constitution speaks with unusual clarity in foreclosing the possibility of a third term. We’ve all read these words at some point: “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.”
Clever minds might home in on the words “elected to the office of the President” and reason that Trump could be elected vice president and then ascend to the presidency automatically by having his running mate graciously step aside. But the Constitution is clear on that as well: “No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
If Trump wins reelection this fall, he can’t be elected a third time in 2028. Simple as that.
Isn’t it?
Two publications normally poles apart in their sensibilities considered the question last week and concluded that it is not, in fact, that simple. The Constitution should be amended to let Trump run for a third term in 2028, Peter Tonguette argued at The American Conservative. Trump is going to try to run for a third term in 2028 regardless, Jonathan Last countered at The Bulwark—and the courts might very well rubber-stamp his attempt to do so.
They’re both wrong. And right.
The possibility of a third Trump term feels live in a way that the possibility of a third Barack Obama term never was, partly because of the bitter experience of 2020 and partly to the freakish adulation that Trump has cultivated among his base.
Obama had his own moony messianic appeal for the left, especially circa 2008, but that was mostly a function of the historic nature of his candidacy and wore off as he got down to the messy business of governing. The messianism around Trump has flowed in reverse, actually intensifying as his career has worn on to the point where the MAGA movement as of 2024 is … no longer a political movement, exactly.
A post-liberal cult of personality will not lightly be deterred from extending its hold on power by a few lines of written law, any more than it was by the Electoral Count Act on January 6, 2021. So when the prospect of a third term is broached, it naturally rings truer in Trump’s case than it would in Obama’s.
It also rings truer in Trump’s case because, well, Trump is Trump. And because he’s raised the possibility before.
“We are going to win four more years,” he said at a campaign stop in 2020. “And then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.” He repeated the point a month later, vowing to “negotiate” over a third term “because we’re probably—based on the way we were treated—we are probably entitled to another four after that.”
He did say “no” during an interview last year when he was asked if he’d seek a third term, but that was in the course of insisting that only a lazy chump like Ron DeSantis would need two full terms as president to fix America. “In six months to a year, many of the problems, almost all of the problems that you and I have just spoken about will be solved,” he crowed about his next administration.
This is the same guy, mind you, who promised in 2016 to eliminate the national debt in eight years and then ran gigantic annual deficits as president even before COVID shut down the economy. His timelines are always subject to revision as circumstances warrant.
So why are Tonguette and Last wrong?
Tonguette is wrong because there’s no chance that the Constitution will be amended to end presidential term limits before 2028. Under Article V, at least 38 states (or three-quarters of an unprecedented constitutional convention) would need to ratify that amendment before it could take effect. There are too many solidly blue states for Trumpists to reach that threshold, realistically.
Or at least Tonguette had better hope so. Because if blue states are given the chance to lift the two-term limit on presidents, Republicans might just find themselves facing a spry 67-year-old Barack Obama again in 2028. And Obama will run well ahead of Joe Biden against Trump.
Last is wrong too, though. “The Supreme Court is not a legal body, it is a political institution,” he writes. “It does whatever it thinks is best and then invents rationalizations for why the law requires that decision.” Supposedly, when Trump eventually launches a dubious challenge to presidential term limits, the specter of right-wing civil unrest if he loses will lead the court to contrive some novel legal reasoning in his favor the same way it did to overturn Colorado’s attempt to oust him from the state’s presidential ballot.
I don’t see it.
Past performance is no guarantee of future results, but this same court has already considered a high-stakes lawsuit filed on Trump’s behalf at a moment when the risk of political violence was sky-high. Remember how that turned out?
In a few weeks the justices will hear arguments on Trump’s ludicrous claim of “absolute immunity” from prosecution for acts he took as president. Want to bet on which way that one is going?
As our friend David French likes to say, the Supreme Court is conservative but it isn’t MAGA. Neither are the Trump-appointed judges across the country who knocked down his many frivolous legal challenges after the 2020 election. It may be that a second Trump term will see some true MAGA judges appointed to the bench—the whole point of his next administration is to replace smart conservatives in government with incompetent loyalist hacks, after all—but it’ll be decades before post-liberals make a majority on the Supreme Court.
So if and when President Trump files a lawsuit challenging the constitutional two-term limit on presidents, I’m very optimistic that it’ll end up in the same toilet as his 2020 challenges. And for an Eeyore like me to be optimistic about anything, it has to be close to a gimme.
It’s also an open question to me whether a fourth Trump presidential candidacy in 2028 would be received as warmly on the right as his first, second, and third candidacies were.
Republican voters could justify renominating him in 2024 in the belief that he was “robbed” of his rightful second term in 2020, but once he’s served that term, the argument that he should be renominated yet again to right some cosmic wrong will weaken considerably. The best they’ll be able to do is reason that his first term was “unfair” because of the Mueller probe or what have you, but that limp logic will run headfirst into a clear constitutional norm barring him from seeking office again.
If you’re one of the many Republicans at the top or bottom of the party who don’t worship Trump and would prefer fresh blood after years of his exhausting lunacy, presidential term limits will provide the perfect pretext for you to finally hop off the Trump train in 2028. You’re not being “disloyal,” see; you’re not even saying that term limits are a good thing. Dictator for life would be great! It’s just that, well, the law is the law in this case. Nothing to be done about it—regrettably, of course.
All in all, the “third term for Trump” push is probably going nowhere. Insofar as Tonguette and Last believe otherwise, they’re wrong.
But insofar as they’re each expecting that there will be a push? They’re dead right.
Of course Trump will seek a third term. Character is destiny.
This barely requires analysis. As a matter of pure lizard-brain sociopathy, it would be inconceivable for him to lightly relinquish something valuable—let alone the most powerful office on Earth—just because a piece of paper says he needs to. He’ll hand it over only when he’s exhausted every available means of holding onto it, just as he did in 2020. He’ll sue; he’ll pressure powerful officials with influence over the outcome; he’ll egg on the fanatics in his ranks to threaten those who resist him. Everything is “negotiable,” to borrow a word he used in this context once before.
He might not succeed but he’ll certainly “fight,” as only a sucker would do otherwise. If nothing else, the possibility that his criminal trials in Georgia and/or New York might restart in 2029 after being held in abeyance for four years while he served out his term as president would give him extra incentive to extend that term by hook or by crook.
Only if he’s so worn down by age and ill health that he doesn’t want the job anymore will he go quietly in 2028. And even then, I suspect he’d try for a third term anyway simply to extend his control over the Republican Party. Retiring, after all, would mean forfeiting his place at the center of the right-wing political universe to the next GOP presidential nominee, an intolerable diminishment to a narcissist as twisted as him. It’s one thing to lose a powerful office, it’s another thing entirely to lose one’s status as an idol of national salvation. He’s not equipped psychologically to cope with it.
“If Trump wins this election, he will attempt to run again in 2028. You can take that to the bank,” Last writes. “Likewise, it’s a mortal lock that Conservatism Inc. will come up with various rationalizations for why Trump should be permitted a third term, as they have excused and justified and embraced every Trump depredation and crime.”
That’s all correct. A party that wants to rename airports for its hero after four indictments, two impeachments, and a coup plot is a party whose appetite for another Trump run in 2028 is likely greater than I gave it credit for above.
And when he does run, Tonguette is correct about what the chief rationalization will be. “If a man who once was president returns, after a series of years, to stand again for the office and proves so popular as to earn a second nonconsecutive term—as Trump seems bound to do—to deny him the right to run for a second consecutive term cuts against basic fair play,” he argues. “If, by 2028, voters feel Trump has done a poor job, they can pick another candidate; but if they feel he has delivered on his promises, why should they be denied the freedom to choose him once more?”
That logic is familiar. We’ve heard it from populists as a defense to Trump’s impeachments, then again as a defense to his criminal indictments, and recently a third time as a defense to the legal effort to disqualify him from the ballot under the 14th Amendment. Who dares deny The People the right to choose their own leaders?
It’s a stupid argument, as it implies that no civic institution can legitimately sit in judgment of Trump so long as he remains a candidate for office. Only the electorate can—and if, as in 2020, the electorate also gives him a thumbs down, rest assured that there must be fraud afoot to explain that result. It’s also stupid because the Constitution limits Americans’ right to choose their leaders in all sorts of ways, starting with mandating age thresholds for the presidency and Congress. Because the Constitution itself is the supreme expression of popular will, there’s no democratic contradiction in having it bar simple majorities from reelecting presidents who have served two terms.
Even so, “Who dares deny The People the right to choose their own leaders?” is a shrewd rhetorical device given Americans’ (nominal) respect for democracy. If you’re a populist convinced that the dreaded elites are forever conspiring to keep Donald Trump away from power, being reminded that you’re legally barred from electing him again in 2028 might leave you feeling indignant that the greatest country on Earth isn’t truly free to have the president of its choosing. What kind of democracy is this, where the establishment prevents The People from giving a crook a third term?
Tonguette wants to solve that problem by the book, via the Article V amendment process. That’s to his credit, as it’s the proper procedure for making constitutional changes. But that won’t happen before 2028, as I’ve said, and so Trump will need a more creative way to avoid the two-term limit on his presidency. What might he do?
Well, what do authoritarians usually do in this situation?
My guess is that he’ll discern some “emergency” in 2028 that requires him to remain in office past the expiration of his term. He could have tried that in 2020 too, but that would have been a high-stakes gamble. For one thing, he believed he would win a second term fair and square at the polls (and nearly did), making a heavy-handed power grab unnecessary. For another, he might have sensed that he lacked the critical mass of devout loyalists in prominent positions needed to carry out such a plot successfully.
None of that will be true in 2028. His administration will be staffed to the gills with diehard cronies and, being term-limited, he’ll have nothing to lose by contriving an extraordinary excuse to try to stay in power. It won’t be a third term so much as an indefinite continuation of his second. As it happens, a close friend and adviser of his has a bit of personal experience with that.
If Trump asked state legislatures controlled by Republicans to cancel or postpone their elections amid this supposed emergency, how confident are you that they would say no?
Another thing he might do is what he always does in a crisis, which is to play for time and pound the table about unfairness. He might, for instance, key in on the fact that the Constitution says that a president can’t be “elected” for more than two terms but not that he can’t run for more than two terms. Imagine that, after spending the next four years grousing about how “crooked” it is that the American people aren’t free to reelect him, he resolves to run again in 2028 and encourages Republican voters to treat his candidacy as a protest vote against the unfairness of term limits.
How sure are you that he wouldn’t be renominated? If he is and ends up winning—or losing, because of “cheating”—the general election, what happens when he declares that the people have spoken and he won’t leave office, whatever the Supreme Court might have to say about it? Will a government and military leadership staffed by Trump flunkies defy him by declaring him ineligible on January 20, 2029?
If that isn’t in the offing for whatever reason and he concludes that there truly is no point in seeking a third term, my guess is that he’ll throw his support for the 2028 Republican presidential nomination to some cat’s-paw he can easily control like his friend Vladimir once did. Trump’s aspirations to monarchy make Donald Trump Jr. an obvious possibility, but lord knows there are plenty of obliging sycophants outside the immediate family willing to do whatever their leader wants in exchange for power. So long as the Republican base looks to ex-President Trump for political guidance, he enjoys the power to wreck any puppet successor in office who defies him.
Which means that even if Trump leaves office, he hasn’t really left office.
However this ends up playing out, reelecting him this fall guarantees that power won’t transfer smoothly in 2029. That’s especially true if a Democrat is elected in 2028: The apocalyptic terms in which MAGA populists routinely frame the prospect of left-wing governance, starting with the “Flight 93” nonsense in 2016 and extending to Trump’s stump speeches today, makes it impossible to imagine him tossing the keys to the White House to, say, Gavin Newsom. Even if he’s disinclined to interfere, the Republican base that he’s spent nearly 10 years radicalizing will demand it. They’re better authoritarians at this point than he is.
Choosing Trump in November means choosing chaos. We all know it, or should know it, by now. We seem resolved to choose it anyway.
