Trump’s Third Term Plan is Impossible…Right?

Summary

Bulwark Takes: Trump’s Third Term Plan is Impossible…Right?

Release Date: March 31, 2025

In this episode of Bulwark Takes, hosted by Sam Stein, the Bulwark's Legal Editor, James Ramoser, delves into a provocative and timely topic: the possibility of former President Donald Trump pursuing a third term despite constitutional barriers. Drawing from Ramoser's insightful article, "How Trump Could Snatch a Third Term Despite the 22nd Amendment: Four Ways Trump Could Stay in Power Beyond 2028," the discussion navigates through legal interpretations, potential loopholes, and the likelihood of such a scenario unfolding.

---

1. Trump’s Third Term Comments

The episode kicks off with a discussion about recent statements made by Donald Trump regarding a potential third term. Ramoser emphasizes the importance of taking these remarks seriously, moving beyond dismissing them as mere rhetoric.

Sam Stein [01:35]: "Donald Trump has been joking about a third term, but his recent comments suggest he might be serious."

James Ramoser [04:50]: "I decided to take him both seriously and literally ... he is thinking about it."

Trump’s comments on programs like “Meet the Press” have added fuel to the speculation, with him suggesting unconventional methods to remain in power.

---

2. Constitutional Constraints: The 22nd Amendment

A core part of the discussion centers around the 22nd Amendment, which explicitly limits U.S. Presidents to two elected terms.

James Ramoser [05:03]: "The 22nd Amendment uses the term 'elected' and it says you cannot be elected to more than two terms."

Ramoser clarifies that the amendment does not specify consecutive terms, meaning that even non-consecutive terms are restricted.

James Ramoser [05:37]: "The 22nd Amendment doesn't apply only to consecutive terms. It simply states you can't be elected to two terms, period."

This strict interpretation presents a formidable barrier to any attempts at a third term through traditional electoral means.

---

3. Loopholes to a Third Term

Despite the clear language of the 22nd Amendment, Ramoser explores potential strategies that could be employed to circumvent this constitutional barrier.

a. Vice Presidential Coup

One proposed method involves Trump running as a Vice Presidential candidate alongside another Republican, such as Vice President J.D. Vance.

James Ramoser [06:25]: "The idea would be that Vance or some other running mate would run at the top of the ticket and Trump would run as the VP candidate. If elected, the top candidate could resign, allowing Trump to ascend to the presidency."

This strategy hinges on the interpretation that Trump would not be "elected" President directly, thus sidestepping the 22nd Amendment's restrictions.

b. Speaker of the House Strategy

Another more complex approach, referred to as the “Stein Loophole,” involves elevating Trump to the Speaker of the House position.

Sam Stein [10:37]: "Make Trump the Speaker of the House... circumvent the 12th and the 20th and 22nd Amendments."

This method would require substantial cooperation within the Republican Party and is considered highly speculative due to its logistical challenges.

c. Legal Interpretations and the Supreme Court

Ramoser discusses the role of the Supreme Court in potentially validating these loopholes.

James Ramoser [07:21]: "The Supreme Court, being highly textualist, might uphold such arrangements if they strictly adhere to the letter of the law, despite violating its spirit."

The uncertainty surrounding future Supreme Court decisions adds another layer of complexity to the feasibility of these strategies.

---

4. Assessment of Likelihood

When asked to rate the seriousness of Trump's intentions on a scale from bluff (1) to certainty (10), Ramoser offers a measured perspective.

James Ramoser [14:00]: "I'm gonna go like right now, I think it's Maybe like PI 3.14, roughly."

While not highly probable, Ramoser notes that the mere consideration of such strategies indicates Trump’s interest in exploring avenues to extend his influence.

James Ramoser [15:05]: "The fact that he was even aware of this like a highly technical sort of nerdy loophole."

---

5. Constitutional and Political Implications

The conversation touches upon the challenges of amending the Constitution to prevent such scenarios, highlighting the political improbability of achieving the required supermajorities for ratification.

James Ramoser [11:36]: "Changing the Constitution would take super majorities in both chambers of Congress and in a supermajority of the states... not politically feasible."

Ramoser underscores the importance of addressing these loopholes through clear constitutional language to safeguard democratic processes.

---

6. Conclusion and Forward Look

The episode concludes with Sam Stein urging listeners to read James Ramoser's comprehensive article for an in-depth exploration of the topic.

Sam Stein [15:38]: "I encourage people to go and read the piece. It is titled, in case you're looking for it: 'How Trump could snatch a third term despite the 22nd Amendment. Four ways Trump could stay in power beyond 2028.'"

Ramoser’s analysis serves as a crucial examination of the potential constitutional and political maneuvers that could challenge the established two-term limit for U.S. Presidents.

---

This episode of Bulwark Takes provides a thorough and engaging analysis of a hypothetically alarming scenario, blending legal expertise with current political developments. For those seeking to understand the intricacies of presidential term limits and the possible strategies to navigate them, this discussion offers valuable insights and foresight.

Transcript

[Unknown Advertiser]

Step into the world of power, loyalty, and luck. I'm gonna make him an offer he can't refuse. With family, cannolis and spins mean everything. Now you want to get mixed up in the family business. Introducing the [e-mail] test your luck in the shadowy world of the Godfather slot. Someday I will call upon you to do a service for me. Play the Godfather now at champacasino. Com. Welcome to the family. No purchase necessary VGW Group Void where prohibited by law 21 + terms and conditions apply.

[Sam Stein]

Hey, guys. Welcome back to the Bulwark. I'm Sam Stein. I'm joined by James Ramoser, who is. What is your fearless title now these days? Legal Editor. Is that it?

[James Ramoser]

Legal Editor.

[Sam Stein]

Yes, Legal Editor. That's it. You do so much more.

[James Ramoser]

I recently acquired a deputy legal editor, so now I feel like I should be legal Editor in Chief or something like that.

[Sam Stein]

Yeah, Legal Editor in Chief at Politico. My former colleague. We're going to be talking about a piece that James wrote, actually, which is not all that common, but it was such a good one. And it's not even a new piece. Want to get the. I want to make sure I have the right time that this was written. It was. I'm scrolling all the way back up because it's such a long magazine piece. This was written at the end of January. And back then you had the foresight to say, hey, folks, you should be taking this constant talk that Donald Trump has about, you know, jokingly serving a third term. You should take it seriously. And here's why. And, you know, for a while, I guess, and I count myself in these people, I sort of thought this was kind of like a jokey thing. And then this past weekend, this happens.

[Donald Trump]

President Trump called me this morning. We discussed a range of topics, including the possibility of him serving a third term. He's joked about it.

[Unknown Advertiser]

I've raised a lot of money for the next race that I assume I can't use for myself, But I'm not 100% sure.

[Donald Trump]

But these were his most extensive comments yet. He told me he's not joking. He said there are methods by which you could do it, but he said it's far too early to think about it. He said he's focused on his current job at the same time I did press him on those methods. There's been some discussion about the possibility of Vice President J.D. vance running perhaps at the top of the ticket with President Trump running in the number two slot and then swapping if they were to win. President Trump telling me that is a method. He said there are other methods. I asked if he could give me details, and he said flatly no. Now, President Trump's allies have said that they are seriously looking at this.

[Sam Stein]

We're working on there.

[Unknown Advertiser]

We're not prepared to talk about it publicly, but in a couple of months, I think we will be.

[Donald Trump]

Here's what you need to know. Though it is incredibly complicated to change the Constitution, serving a third term is prohibited by the Constitution. So this is something that would be far out of reach by any measure. And again, President Trump insisting for right now he's focused on his current job.

[James Ramoser]

You said you were not joking about a third term, about possibly wanting a third term. Does that mean you're not planning to leave office on June?

[Unknown Advertiser]

I'm not looking at that. But I'll tell you, I have had more people ask me to have a third term, which is in a way a fourth term, because the other election, the 2020 election, was totally rigged. So many people are saying you've got to run again. They love the job we do. Most importantly, they love the job with.

[James Ramoser]

You said you were on.

[Sam Stein]

All right, so there he is on. He's Meet the Press. They're reporting that he, in a phone interview with Kristen Welker, is serious about serving a third term, or at least says he's not taking, he's not joke to him. So what, what was it about what was happening in the end of January that made you say, hey, we should take this seriously?

[James Ramoser]

Well, it's something I'd been thinking about for a while, you know, even before January, because as you know, you know, even know, while he was running in 2024, he raised this idea a few times.

[Unknown Advertiser]

FDR, 16 years, almost 16 years. He was four term. I don't know, are we going to be considered three term or two term? You tell me, Ronnie, what do you think?

[James Ramoser]

He even raised it, I think during his first term and we are going.

[Unknown Advertiser]

To win four more years. Then after that we'll go for another four years, because you know what? They spied on my campaign. We should get a redo of four years.

[James Ramoser]

And then very shortly after his victory in November, he raised it again. When he was talking to congressional Republicans just a week after his victory, he was already starting to think about and talk about the potential of serving a third term. Steve Bannon began talking about it publicly. And, you know, it's a cliche at this point to say that we ought to take him both seriously and literally. But I, maybe I decided to take him both seriously and literally. Literally when he talked about serving what would almost certainly be an unconstitutional third term.

[Sam Stein]

But it. So yes, it's unconstitutional because after FDR served four terms, or was elected, I should say four terms and serve the fourth one, an amendment was passed saying that you could not serve more than two terms. Correct.

[James Ramoser]

Well, Sam, that's not quite right. This is part of.

[Sam Stein]

You can't only. Okay, yes. Well, let's get. Sorry, I want to be very technical with the words what is prohibited by the Constitution. Just strictly based on the wording of.

[James Ramoser]

The Constitution, the 22nd Amendment uses the term elected and it says you cannot be elected to more than two terms. Okay, now to get one like immediate issue off the table that I think some people might be a little bit confused about, the 22nd Amendment doesn't apply like it. It applies just as much to non consecutive terms as consecutive. So some people think that like it says, you can only serve more than two consecutive terms.

[Sam Stein]

Right. Since Donald Trump. Donald Trump took a term off.

[James Ramoser]

Took a term off. It just says you can't be elected to two terms, period. Sure. But the problem is that that word elected, because it doesn't quite explicitly rule out the possibility of ascending to the presidency by some other means. And you can become president through some other means. Other. Like through other means other than being elected.

[Sam Stein]

Let's go through the other means because there's one in particular that Trump has himself quietly, I guess, embrace here because he mentioned it to Welker, which involves basically being a stocking horse. He would allow J.D. vance to run, get elected, and then graciously hand over the presidency. Are there others or is that the main one?

[James Ramoser]

Right. Then that's the main loophole that, that I see what I've called the 22nd Amendment loophole. And so. Right. The idea would be that Vance or, or some other lackey would run at the top of the ticket and Trump would run as the VP candidate. And you could even do this like explicitly, you could tell the voters in advance that if our ticket wins, the person at the top of the ticket will resign on January 20, 2029, and Trump as the elected VP would then ascend to the office of President. And because he was not elected to the presidency, there is at least an argument that some law professors take seriously that that would not violate.

[Sam Stein]

Would a lawyer, would a lawyer not say, hey, they've made this explicit promise, therefore Trump himself is running and therefore in voters minds, they are electing Donald Trump. Would that not be a violation of the 22nd Amendment.

[James Ramoser]

It certainly violates the spirit of the 22nd Amendment. No question about that. But as you know, I mean, the Supreme Court right now is highly textualist. And what, you know, the preferred method of constitutional interpretation is to look at the literal language of constitutional text and not at its spirit or at its intention. And so I think, as you know, like, pretty Trump friendly Supreme Court. Who knows what the Supreme Court will look like in 2028 or 2029 when this would be tested. The Supreme Court, it could be populated by even more Trump appointees. And so I'm not confident that the Supreme Court would declare such an arrangement unconstitutional.

[Sam Stein]

Now, could Trump serve as vp? Would that be a violation of the Constitution?

[James Ramoser]

So, I, I don't think so, but, but there is an argument that it would be. Okay. And so the other wrinkle here is this language in the 12th Amendment, which some people have raised as an objection to my loophole proposal.

[Sam Stein]

Wait, it's your loophole proposal?

[James Ramoser]

Well, it's actually not my loophole proposal.

[Sam Stein]

Yeah, you said it was yours, though. But I just want to make sure we have proper ownership here.

[James Ramoser]

I think that I'm the first journalism journalist to sort of popularize this and, like, put this out into the public sphere. But some constitutional experts have been writing about this for decades, actually, and that's the way I came across it. I came across a law review article about it.

[Sam Stein]

How old was the law review article?

[James Ramoser]

I believe the, this was first written about in maybe the early 2000s, I have to check. And then it was updated in a 2016 article.

[Sam Stein]

So it was, it predates Trump. And it was just someone who was kind of thinking a lot about what the possibilities were to get around the 22nd.

[James Ramoser]

This law professor named Bruce Peabody, basically, you know, long before Trump came on the scene, kind of foresaw the, the possibility that there is this, like, this does seem to be this loophole in the way that the 22nd Amendment is written.

[Sam Stein]

Gotcha. All right, back to the 12th Amendment.

[James Ramoser]

So, Ken, so the 12th Amendment poses a bit of a wrinkle, because what the 12th Amendment says is that no one ineligible to the office of president can run for vice president. Right. So if you're not, if you're not eligible to serve as president, you can't run for vice president.

[Sam Stein]

Technically, Trump is not eligible to serve as president because he cannot be elected president for a third.

[James Ramoser]

Well, that's the question. That's the question. I'm not sure, I'm not quite sure.

[Sam Stein]

Which one comes first, chicken or egg Here Yeah, exactly.

[James Ramoser]

So it becomes, it becomes a little bit, it becomes complicated and I don't think there is a clear answer from the text. But you know, if you take seriously the word elected in the 22nd Amendment, then it's not true that Trump is ineligible to the office of President Trump after 2028. He's only ineligible to be elected to the office.

[Sam Stein]

Well, there's another way around this, of course, which is the third, the Stein loophole. Okay. Which is you make Trump the Speaker of the House. As we all know, you do not have to be an elected member of the House, be Speaker of the House, and then you have the Vice President and the President run on a platform explicitly of getting out of the way once they're elected. So Trump. Well, who will be second in line at that point, can serve and therefore you can circumvent the 12th and the 2nd in the 20th and 22nd amendment.

[James Ramoser]

Yeah. Now we're going like from four dimensional chess to like 40 dimensional chess. And you would need, you would need Republicans to hold the House and to cooperate in electing Trump to be speaker of the House. I mean now we're getting like super far fetched. But you're like the Stein loophole makes the point that there are other ways to become President than merely by being elected in an election. And I think the Supreme Court would take seriously the fact that, that the 22nd Amendment uses the word elected when it could have used the word serve. It could have said no one shall serve.

[Sam Stein]

Do we know, do we know if that was? I have no freaking clue. But do we know if that was deliberate?

[James Ramoser]

I don't think we know for sure. There has been some scholarship on this at least, there's at least a bit of evidence that the drafters considered using the word serve in the amendment, but didn't and instead use the word elected, which I think the Supreme Court might find significant, persuasive.

[Sam Stein]

Yeah. The other way around this is of course changing the Constitution.

[James Ramoser]

That's another constitutional way to do this. Yeah, no, no, no doubt about it.

[Sam Stein]

But that would take some time. There have been proposals, yes.

[James Ramoser]

Yeah, I mean, so like that, that's, I don't think that's politically feasible because you need super majorities in both chambers of Congress and in super majority of the states to ratify it. And so I don't think that's realistic. But we have already seen proposals in the House to introduce, you know, an amendment proposal.

[Sam Stein]

Right.

[James Ramoser]

To amend the 22nd Amendment and just make it clear.

[Sam Stein]

But no one expects that to Go anywhere. The more likely avenue would be the loophole and the more unlikely avenue would be the Stein loophole.

[James Ramoser]

So there are the two. There's the remoter loophole and the Stein loophole, for sure. And then. But then in terms of likelihood, of course, you know, there are other ways that he could attempt to hold on to power, which would simply be flagrantly unconstitutional, which would be, well, refuse to leave. Yeah.

[Sam Stein]

At that point, we're. We're pretty screwed.

[James Ramoser]

I mean, I don't need to remind you, he does have a history.

[Sam Stein]

Yes, I'm aware.

[James Ramoser]

He does not rightfully have any claim.

[Sam Stein]

Yes, there is some precedent now. Okay, fair enough. And then there's like in the wings, is Barack Obama. Who can be watching all this, wondering, well, do I have a card to play here? And if so, what is it? Because I guess if Trump goes, he can go to.

[James Ramoser]

Well, he would need his own stalking horse.

[Sam Stein]

Yeah. Michelle.

[Unknown Advertiser]

Wouldn'T that be great?

[Sam Stein]

Obama vs Trump in 2028 at this point, Just enough. Let me ask you, because I'll leave on this question. You had the foresight to write about this at the end of January before. I mean, we've been like 10 days in, but you ran it, obviously, or conceived it before Trump actually was inaugurated. Do you. I mean, on the scale of seriousness, because. And this is just you taking a stab in the dark. I'm not trying to hold you, your feet to the fire on this one, but let's say you take this deadly serious. You think it's a given that he's going to do this at 10, and you think this is all a bluff at 1. Where would you put your mind at this point about him? Considering all these comments, that's repeated joking, and now this clarification that it's not a joke. Where do you think he really is on this?

[James Ramoser]

One being a bluff and ten being a certainty. Yeah, I'm gonna go like right now. I think it's Maybe like PI 3.14, roughly.

[Sam Stein]

That was such a dorky response.

[James Ramoser]

Not an exact science. Like, I think it's, you know, it's. I don't think it's like, like a likelihood.

[Sam Stein]

I mean, I think the thing is, like, ultimately to me, he needs to have that hanging out there in order to be powerful or at least the, the image of power. And so he can't say, no, it's a joke. He can't. Because then it suddenly he's a lame duck. And so that's that. But then again, I. The thing that got me is when he. And that's why I think him saying, you know, we was talking about the JD Van Stocking horse thing, that that to me signified that was actually serious because they had gamed out or someone had at least talked to him about the possibility of how it would work. And so someone had to sit down and explain to him, no, sir, this is like these are the various steps that it would have to take and so on and so forth. I don't think he, you know, I don't think he's that detailed. So that to me signifies that he actually is thinking about it.

[James Ramoser]

I agree. The fact that he was even aware of this like highly technical sort of nerdy loophole.

[Sam Stein]

Moster loophole.

[James Ramoser]

Yeah, yeah.

[Sam Stein]

And in fact he said if you, if you read the actual transcripts, not just watch it, he says, yes. I read the James Mercer article January 31st and it just inspired me to think, nah, he didn't say that. I wish he had. All right, James, thanks so much, man. I appreciate it. It's been, it's criminal that we haven't had you on. I apologize for that. We're going to have you on more regularly.

[James Ramoser]

Apologize. I've been waiting for the invite.

[Sam Stein]

I encourage people to go and read the piece. It is titled, in case you're looking for it. How Trump could snatch a third term despite 22nd Amendment. Four ways Trump could stay in power beyond 2028. James wrote it end of January, but it is ever more prescient these days. James, thanks so much. How to have fun anytime, anywhere. Step one, go to chumbacasino.com chumbacasino.com Got it.

[Donald Trump]

Step two, collect your welcome bonus.

[Sam Stein]

Come to papa.

[James Ramoser]

Welcome bonus.

[Donald Trump]

Step three, Play hundreds of casino style games for free.

[Sam Stein]

That's a lot of games, all for free.

[Donald Trump]

Step four, unleash your excitement.

[James Ramoser]

Chumba Casino has been delivering thrills for over a decade.

[Sam Stein]

So claim your free welcome bonus now.

[James Ramoser]

And live the Chumba life.

[Donald Trump]

Visit chumbacasino.

[Unknown Advertiser]

Com no purchase necessary VGW Group void where prohibited by law 21/ terms and conditions apply.