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This week’s episode of Amicus is a mailbag special in which Dahlia Lithwick and Mark Joseph Stern answer listeners’ burning questions about the law and its odds of surviving a second Trump administration. Amicus listeners have a lot of smart questions, so we’re starting a new occasional “Dear (Juris)Prudence” series in which we share your questions and Mark and Dahlia’s answers. Write to amicus@slate.com to pose a question to Dahlia and Mark. This transcript has been edited and condensed for clarity.
Dear (Juris)Prudence,
Every so often, Trump throws out the phrase “If I’m reelected.” Politicos talk about Trump being a lame duck and how impossible that is, but we’ve seen Trump do so many things never before imagined that I’d like to know if there is any possibility of his running again. Considering he has both houses (although very slim margins for both), I wouldn’t be surprised if they twist themselves into knots to somehow give Trump another term. Is that possible? Could he run again as vice president to Don Jr.? Would it be possible to prove that he is actually running for president if he did that, as a shadow president?
—Tracey Harnish
Dahlia Lithwick: I put this in the bucket of fanciful hypotheticals that sent me spiraling right after the election. I started asking people—including you, Mark, and certainly Sen. Sheldon Whitehouse—“Are they just going to add, like, a bunch of seats to the court? What’s going to stop them?!” And I think in some ways it’s animated by this ongoing fear that because the law continues to be what six justices say it is, they can just make stuff up.
I am in no way maligning Tracey’s question, though. We just had Stephen Bannon, at the 112th New York Young Republican Club dinner in downtown Manhattan, riling up the crowd by saying, “Are you ready for Trump ’28?” as people in the audience roared in joy. Bannon said that he had consulted another great brain in the Trump legal sphere, Mike Davis, who had allegedly suggested that the Constitution would certainly allow Trump to run for a third term. But Davis later told a reporter no, “that’s crazy.”
Here’s the deal. The 22nd Amendment says: “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.” So that seems pretty cut-and-dried.
Let me add that there are certainly some nutbars who have suggested, with no legal authority, that the 22nd Amendment refers only to two consecutive terms. If even Mike Davis says that this is crazy, I’m going to align myself with Future Someday Justice Davis (kidding) and say that that would be “crazy.”
So, while I worry about many, many things, including whether there could be a free and fair election in 2028, I do not worry that Donald Trump, even if he controls both houses of Congress and the court, can just gobble up the 22nd Amendment and say it applies to all presidents except for him. Maybe I’m wrong. I’ve been wrong before. I think, Tracey, that you and I need to find a thing to worry about that is not something that even Mike Davis says is crazy.
Mark Joseph Stern: I just want to add that I think they’re doing this because Trump is a strongman, and part of the aura of a strongman is that there can be no conceivable limit on his power. So the idea that he’s a lame duck as soon as he reenters office, it’s anathema to all that Trumpism stands for. They have to perpetuate this fantasy that there’s some way around the 22nd Amendment.
Tracey does point out one potential loophole in her letter: I think it’s clear that Don Jr. could run for president in 2028, with Donald Trump as his vice presidential candidate. And if they win, at 12:01 p.m. on Jan. 20, 2029, Don Jr. can resign and Donald Trump will become the president. There is nothing, to my mind, in the 22nd Amendment that forbids that. I mean, we can do a pragmatic, functionalist reading, and we can say it goes against the spirit of the amendment. But it doesn’t go against the text. As long as Donald Trump is not elected as president for a third time, he could be elected vice president and then become president. And I do not believe there is any limitation on his power to then serve the remaining three years and 364 days as president if that occurs.
Let’s hope we’re not having this conversation in four years. But I do think that it’s a way around the 22nd Amendment. And if I know the Trump lackeys as well as I think I do, they are already considering it.
Two tiny dim bulbs of hope that I would like to offer up. One, Trump would be 82; unclear whether he’s going to run for vice president at 82. But second, and more emphatically, can you imagine running Don Jr.—the least likable man in politics, maybe even more unlikable than Ted Cruz—to be your front man? I mean, let’s at least do the scenario with somebody who actually could win the presidency, and not the guy who just provokes an immediate ick factor of a billion. Is that fair?
Fair enough!
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