In response to reporter questions, Donald Trump didn’t rule out serving a third term, which set off a nearly anaphylactic media reaction that that would violate the Constitution.
Whether Donald Trump SHOULD attempt a third term as President is one thing. But whether he COULD is a different question. And the reporters – shocking – mostly got it wrong.
There is no doubt Trump can’t be elected a third time to the office of the President – that’s clearly barred by the 22nd Amendment.
“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….”
But that Amendment only prevents being elected a third time to the office of the President, not serving a third time.
I’m so old I remember when the idea of Obama running as Biden’s VP in 2024 – or a substitute candidate’s VP – was floated. The concept was that Obama gets elected VP, then the President resigns and Obama becomes President for a third term. It never happened, but it could have.
Prof. Emeritus John Bonzaf of George Washington Law School (follow him on X at @profbanzhaf) has this analysis, which we are running with his permission:
Trump Could Serve a 3rd Term Under “Plan C”
Law Professors’ Tactic Would Make It Constitutional
WASHINGTON, D.C. (April 2, 2025) – Although most major media outlets continue to report that a third presidential term for Donald Trump would violate the Constitution, “Plan C” – which was originally conceived as a way to save the Democratic Party – would work as well if not better for the Republicans because it avoids the constitutional impediments, says public interest law professor John Banzhaf and many other constitutional experts.
These experts include law professors Dan Coenen, Michael Dorf, Bruce Peabody, three former White House lawyers, and an analysis published on the popular legal website AboveTheLaw. Professor Banzhaf’s detailed constitutional analysis is spelled out in detail here, and is summarized below.
If Trump persuaded the Republican party to nominate a “straw” (token or nominal) candidate for president and him as its vice presidential candidate, and both assured the public that the straw would resign immediately after being sworn in, Trump could become president by succession – thereby avoiding the constitutional restriction upon being “elected” for a third term, says Banzhaf.
Under Banzhaf’s original “Plan C,” Biden would have remained the Democratic nominee for president in 2024, but Barack Obama would be listed as its candidate for vice president. Then Biden would announce beforehand that he would resign immediately after becoming president, so that Obama could then assume the high office; thus voters would effectively have been given a choice in 2024 for the next president between Trump and Obama.
This proposal would have avoided the indignity and other problems of forcing Biden to withdraw from the race, and of running a weak and largely unknown Kamala Harris for president. Instead, the real Democratic presidential contender would have been Obama who – unlike Harris – was very well known and widely popular.
Although very widely publicized, Banzhaf’s “Plan C” wasn’t adopted. Had the 2024 presidential race been effectively between Trump and Obama as Banzhaf had suggested, Trump might not have been elected, and the makeup of the new congress might also have been different, suggests Banzhaf.
The 22nd Amendment, which is most frequently cited as a bar to Trump ever serving as president again, doesn’t, Banzhaf argues, as least according to its carefully crafted and very narrow exclusionary language The amendment says in full:
“No person shall be elected to the office of the President more than twice, and no person who has held the office of the 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.” [emphasis added]
So while this amendment may bar Trump from “being elected” to the office of president again, it obviously and by its clear language doesn’t prohibit him from being elected as vice president, and subsequently becoming president by succession without ever being “elected” to the office again.
Those who argue to the contrary ignore the key word “elected” and, in interpreting the Constitution, every word must be given weight, notes Banzhaf.
But this brings up the 12th Amendment which, Banzhaf suggests, likewise doesn’t bar Trump from running for vice president along with a straw or token presidential candidate.
It provides that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” [emphasis added]
But, according to the overly precise language deliberately and carefully chosen by the drafters, while Trump cannot “be elected to the office of the President,” there’s nothing to say that he cannot be elected to the office of the Vice President, and then succeed to the presidency if the straw resigns after winning and being sworn in.
In other words, Trump is not now “ineligible to the office of President” and therefore ineligible to run for Vice President, because he is only ineligible to be “elected” to the office of the president, not ineligible to attain the office by succession.
Article Two explains who is “eligible” to the office of president: “No Person except a natural born Citizen, or a Citizen of the United States . . . shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” [emphasis added]
So the phrase in the 12th Amendment relating to anyone “ineligible to the office of President” – as clearly different from the language in the 22nd Amendment “elected to the office” – means simply than anyone who is under 35 or not a citizen or not a 14+ resident of the U.S. is “ineligible” to the office of either president or vice president.
Such an analysis may to some seem strained, but the drafters obviously chose not to use clear language simply prohibiting someone from serving more than two terms as president. As law professor Dorf explained:
“‘The 22nd Amendment, to my mind, is a sort of stand-alone provision,’ he continued. And that provision says ‘elected.’ ‘The drafters of this language knew the difference between getting elected to an office and holding an office. They could have just said ‘no person may hold the office of president more than twice.’ But they didn’t.’”
And while “Plan C” probably isn’t exactly what the drafters could have anticipated, and therefore it may seem strange, but a careful literal analysis of the language – especially employing the literalism and/or originalism favored by many of the Supreme Court’s justices – shows that Trump is not constitutionally barred from running for vice president and then becoming president by succession, argues Banzhaf, who has won several constitutional law cases.
It also makes it less likely that a majority-conservative Supreme Court with three Trump appointees would vote to prevent Trump from being listed on ballots as the Democratic Party’s nominee for vice president, or to prevent his succession to the higher office if the person elected president resigns.
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