President for Life? Easily Done!

I often point out that politicians and media commentators in the US are too often captives of the conventional wisdom.  Although that makes them lazy and thus dangerous, they are at least saying things that they think are thoughts.  That is, they will talk about Social Security supposedly going bankrupt (not true), or they will say that Democrats should not tell people how to "feel" about inflation (which is silly), but they say these things because they think that it is important to take a position on a policy issue.  Mindlessly aligning oneself with the conventional wisdom is lazy and almost always gets it wrong, but it passes for thinking in a minimal sense.

Arguably worse would be the rote repetition of statements that seem to be uncontroversial but have become anything but.  Are there any examples of that?  Yes, there is at least one, and it is unfortunately a very high-stakes error.  Countless commentators and politicians -- and this is truly non-ideological and bipartisan -- casually refer to Donald Trump's possible return to the White House for "his second four-year term" or similar language.  This is based on the unexamined belief that Trump would serve the maximum of two terms and then leave office peacefully.  Why?  Because the Constitution says so.  And we know how much Trump respects the Constitution.

We need to stop taking it for granted that Trump would serve only one more term.  I have mentioned this a few times in recent years (most recently two months ago), but I have not gone into any detail about how he would pull it off.  I have either left the mechanism by which Trump would become President for Life unexplored or, at most, I have suggested that he will order the Republicans to amend the Constitution to give him what he wants (and that they will do so eagerly).

I am not completely alone in worrying about this, of course.  Two weeks after the 2020 election, when Trump's attempted coup was taking shape, I wrote "Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point," on Verdict.  I then received a very positive email from a reader, who offered this thought about what Trump would have done if he had succeeded in stealing that election from Joe Biden:

I think very quickly (say within 2021 or maybe early 2022) we'll see an assault on the 22nd Amendment. I think it'll start off in Trump's usual way - he'll start off by making some jokes in which he references how Supreme Court justices are selected for life and 'how great that must be'. Then we'll see some out-there right wing media publications post/publish a few op-eds supporting the overturning of the 22nd. I think we've seen this playbook before (introduce an outrageous idea, deny originating the idea, and then stand by as Trump followers slowly, organically get behind the idea) and understand how it'll play out from there.

That scenario nicely relied on Trump's tried-and-true method of eroding norms and pushing boundaries.  (Indeed, Trump's infamous "terminate the Constitution" line in late 2022 was followed by denials that he had ever said such a thing, with the usual silence from Republicans helping to push the Overton window further and further to the right.)  No matter how he did it, however, my assumption all along has been that the Twenty-Second Amendment would need to be either amended or explicitly ignored for Trump to continue as President.

It turns out that that would not even be necessary.  The Twenty-Second Amendment would, in fact, barely be a speed bump on Trump's road to staying in power.

In a way, this should not be a surprise, given how sparse the Constitution can be.  People are surprised to learn that, say, states are not constitutionally required to determine their Electoral votes by popular election.  And when Mitch McConnell hatched the cynical idea of simply refusing to hold a vote on Barack Obama's nominee to replace Antonin Scalia on the Supreme Court, people were stunned to learn that the Constitution's "advise and consent" clause was so general that it could be ignored.

The Twenty-Second Amendment is similarly poorly drafted.  It reads: "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."  (The other sentence in Section 1 applied only to President Harry Truman.)

I re-read that sentence recently, and because I have learned to be as cynical as possible when thinking about how the Republicans might abuse the Constitution, I thought: "Wait a minute, '... elected ... more than twice'?  'Elected'?!  That is hardly the only way that a person could become President."  I asked a member my crack team of research assistants to do a preemption check on this question, and sure enough, she found that others have noticed this potential loophole.  Indeed, Congress's own "Constitution Annotated" website has a page discussing precisely this question.

The idea is that a second-term President could win an election to become Vice President.  If the new President were to die, the former President would ascend to the Oval Office again, even though he was not elected more than twice.  More to the point regarding Trump, the idea all along could be for the person at the top of the ticket to resign at 12:01pm on January 20, 2029, giving the old President a fresh term.  There are a number of variations on this scheme, but the essence of it is to use the word "elected" to defang the Twenty-Second Amendment.

The email that I received in November 2020 added this thought: "And if Trump can't manage to get the amendment itself altered? Well the 22nd only applies to people 'elected' to the office of the President. As we're seeing right now; Trump doesn't really need to be 'elected' to the office to consider himself President."  I view that as a version of my intuition that Trump would simply refuse to follow the law, but that would not even be necessary.

As it happens, there is one further nuance, which is that the Twelfth Amendment specifies that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President."  One could read 22 and 12 together to say that a two-term (or even 1.5-term) President is ineligible to be Vice President, meaning that the scheme would not work.  But the Constitution Annotated essay addresses that issue with a question: "Is someone prohibited by the Twenty-Second Amendment from being 'elected' to the office of President thereby 'constitutionally ineligible to the office?'"  An intentionalist would say yes, but a textualist would say no.  Who here thinks that the Republicans would take the more responsible route?  Driving the point home, the Constitution Annotated essay ends with this: "Note also that neither Amendment addresses the eligibility of a former two-term President to serve as Speaker of the House or as one of the other officers who could serve as President through operation of the Succession Act."

My research assistant also found that this loophole has been the subject of at least two law review articles, although those were written from the standpoint of Republicans thinking in 2000 and 2016 that Bill Clinton was somehow going to install himself in the White House for additional terms.  That grimly amusing paranoia on the anti-Clinton right highlights the difference between partisanship in the pre-Trump era and Republicans' hyperpartisanship today.  It is impossible to imagine Democrats uniformly going along with such a scheme after either of those elections, partly because of their general timidity but mostly because there would be more than enough people in the party who would simply say no.

More to the point, the Democrats would worry correctly that the voters would absolutely hammer them in every subsequent election for their blatant power grab.  Because Trump's Republican Party has no intention of allowing elections to get in their way in the future, they would not worry about such consequences.

Of course, this all assumes that the Republicans will set up their one-party autocracy to look like a functioning democracy, using what I have called "legalistic lawlessness" to provide the veneer of legitimacy that elections and constitutions provide.  And why would they not?  Even Vladimir Putin once sat through a term as Russia's Prime Minister while one of his puppets served as President, and Putin also bothers to have sham elections.

If Republicans do indeed succeed -- through whatever means -- in getting Trump back into the White House next January, there is thus good reason to think that they will find it useful to go through the motions of making Trump the President for Life through purportedly legitimate legal means.  This is the party, after all, that includes "constitutionalists" like Utah's Senator Mike Lee and others, who loudly insist that the US is a republic, not a democracy.  That is, the Electoral College and the two-senators-per-state rule are not, in their minds, imperfections or historical accidents based on unprincipled compromises in drafting the Constitution.  If they can say that the current text allows Trump to serve forever, that is what they will say.

In short, when any pundit or politician talks about "putting Trump in office for another four years," that is not wrong, exactly.  After all, to be President for another 15 years, he would have to serve four.  The idea that the Constitution would stop Trump from doing anything at all upon returning to the White House has always been a matter of wishful thinking, but it turns out that a perma-presidency would not even require blatant illegality.  It only requires a compliant party backing him.  And he certainly has that.