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

Episode Date: March 31, 2025

Sam Stein is joined by James Romoser, legal editor at Politico, to discuss Donald Trump's continued claims that he will run for a third term, as well as the technicalities in the constitution and legal loop holes that would make it not impossible.

Hey guys, welcome back to The Bullwark. I'm Sam Stein. I'm joined by James Ramoser, who is, what's your fearless title now these days? Legal editor, is that it? Legal editor, yes. Legal editor, that's it? You do so much more. I recently acquired a deputy legal editor, so now I feel like I should be legal editor-in-chief or something like that. 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.

I want to make sure I have the right time that this was written. It was 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, you know, 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. 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. 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 percent sure. 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. We're working on there. We're not prepared to talk about it publicly, but in a couple of months, I think we will be. 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.

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 January 23rd? 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 we do. All right. So there he is on Meet the Press, the 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 it. He's

not a joke to him. So what was it about what was happening in the end of January that made you say, hey, we should take this seriously? Well, it's something I'd been thinking about for a while, even before January, because as you know, even while he was running in 2024, he raised this idea a few times. He are 16 years, almost 16 years. He was four term, I think, during his first term. And we are going 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. 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 them both seriously and literally, but I decided to take them both seriously and literally when he talked about serving what would almost certainly be an unconstitutional third term. But so yes, it's unconstitutional because after FDR served four terms, or was elected, I should say, four terms and served the fourth one, an amendment was passed saying that you cannot serve more than two terms. Correct? Well, Sam, that's not quite right. This is part of the – Oh, 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 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 immediate issue off the table that I think some people might be a little bit confused about, the 22nd Amendment doesn't apply. It applies just as much to non-consecutive terms as consecutive. So some people think that, like it says, you can only, you can't separate the two consecutive terms. Right, since Donald Trump took a term off. Took a term off. It just says

you can't be elected to two terms, period. Sure. But the problem is that we're 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, like through other means other than being elected. 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 stalking 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? Right. Then that's the main loophole that I see, what I've called the 22nd Amendment loophole. And so, right, the idea would be that Vance 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 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 20th, 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. 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? 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, their 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, you know, I think, as you know, like a pretty Trump-friendly Supreme Court, who knows what the Supreme Court will look like in 2028 or 2029 when this would be tested at 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. Now, could Trump serve as VP? Would that be a violation of the Constitution? So I don't think so. But there is an argument that it would be. Okay. And so the other wrinkle here is this language in the 12th Amendment right which some people have raised as an objection to my loophole proposal wait it's your loophole proposal well it's actually not my loophole proposal yeah you said it was yours though but i just want to make sure we have proper ownership here 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. How old was the law review article? I believe this was first written about in maybe the early 2000s. I have to check. And then it was updated in a 2016 article. So it predates Trump. And it was just someone who was kind of thinking aloud about what the possibilities were to get around the 22nd. This law professor named Bruce Peabody, basically, you know, long before Trump came on the scene, kind of foresaw the possibility that there is this, like, this does seem to be this loophole in the way that the 22nd Amendment is written. Gotcha. All right, back to the 12 amendment 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 if you're not if you're not eligible to serve as president you can't run for vice president technically trump is not eligible to serve as president because he cannot be elected president for that's the question that's the question i'm not sure i'm not quite sure which one comes first chicken or egg here yeah exactly so it becomes it becomes a little bit um 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 after 2028. He's only ineligible to be elected to the office. Well, there's another way around this, of course, which is the Stein loophole. You make Trump the Speaker of the House, as we all know. You do not have to be an elected member of the House to 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, who will be second in line at that point, can serve. And therefore, you can circumvent the troth in the 22nd amendment. Yeah. Now we're going like from four dimensional chess to like 40 dimensional chess. And you would need a cooperation. 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, 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, would, would take seriously the fact that the 22nd amendment uses the word elected when it could have used the word serve. It could have said no one shall serve. Do we know, do we know if that was, I have no freaking clue, but do we know if that was deliberate?

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 used the word elected, which I think the Supreme Court might find significant. Persuasive. The other way around this is, of course, changing the Constitution. That's another constitutional way to do this. Yeah, no doubt about it. But that would take some time. And there have been proposals. A lot of votes, yes. Yeah, I mean, so like that's, I don't think that's politically feasible because you need super majorities in both chambers of Congress and a 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 an amendment proposal to amend the 22nd Amendment and just make it clear. 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. So there are the Ramoser loophole and the Stein loophole, for sure. But then in terms of likelihood, of course, there are other ways that he could attempt to hold on to power, which would simply be flagrantly unconstitutional, which would be to just, well, refuse to leave.

At that point, we're pretty screwed. I mean, I need to remind you, he does have a history. Yes, I'm aware of this. He does not rightfully have any claim to go off. 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 too. Well, he would need his own stalking horse. Yeah. Michelle. Wouldn't that be great? Obama versus 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'd 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 one. Where would you put your mind at this point about him? Considering all of these comments, this repeated joking. And now this clarification that it's not a joke. Where do you think he really is on this? One being a bluff and 10 being a certainty. Yeah. I'm going to go like right now.

I think it's maybe like pie. That was such a dorky response. It's not an exact science. Like I think it's, you know, it's, I don't think it's like like a likelihood i mean i think the thing is like ultimately to me he needs to have that hanging out there in order to be powerful uh 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's suddenly he's a lame duck and so that's that but then again i the thing that got me is when he um 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 it 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 sit down and explain to him, no, sir, this is like, these are the very steps that it would have to take and so on and so forth. I don't think he's that detailed. So that to me signifies that he actually is thinking about it. I agree. The fact that he was even aware of this highly technical, sort of nerdy loophole. Hermosa loophole, yeah. Yeah.

And in fact, he said said if you read the actual transcripts, not just watch it, he says, yes, I read the James Moser article on January 31st and it just inspired me to think, no, I wish he had. All right, James, thanks so much, man. I appreciate it. It's criminal that we haven't had you on. I apologize for that. We're going to have you on more regularly. Apology accepted. I've been waiting for the invite. 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. James wrote it end of January, but it is ever more prescient these days. James, thanks so much.