Back in March, I offered what I could to tamp down the talk of a third term for President Donald Trump. Unfortunately, one must move through some wild wishcasting over the last quarter century (pining for a third Clinton or Obama term), coupled with some election disaster porn (i.e., the genre of journalism where pundits posit the worst possible universe for the next election for the clicks), to get through it. By October, Trump himself (who would be 82 in 2028) said it was “pretty clear” he could not serve a third term.
But never underestimate the power of motivated legal reasoning. Alan Dershowitz has, apparently, a draft book manuscript in hand entitled, “Could President Trump Constitutionally Serve a Third Term?”
According to the exclusive report from the Wall Street Journal:
He writes about an idea where Trump could run for a third term and the final results end up being potentially decided by Congress.
If Trump were to be declared the winner of another election, Dershowitz proposes that the members of the electoral college could abstain their vote when they meet to cast their ballots. Once they abstain, Dershowitz argues, the election would be decided by Congress. “They then select, and not elect, the president,” Dershowitz said in describing his idea.
The book’s editors have some work ahead of them, because this scenario (setting aside all of the other fantastic conditions to get there) is literally forbidden under the Constitution. The Twelfth Amendment makes clear, “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” Congress cannot “select” a president if that candidate has not received any votes. It may only choose among vote-getters.
In any event, the stories seem unable to be stopped. As I told the Associated Press this spring:
He suggested that Trump is talking about a third term for political reasons to “show as much strength as possible.”
“A lame-duck president like Donald Trump has every incentive in the world to make it seem like he’s not a lame duck,” he said.
There’s only about a year before other candidates begin to declare for the 2028 presidential election (Vice President J.D. Vance and Senator Ted Cruz, I expect, would be early contenders to announce), so perhaps then the stories will wane. Until then….
