Harvard Law’s Alan Dershowitz just handed President Trump a book draft exploring constitutional loopholes for a third term, and the theoretical scenarios he’s proposing would make the Founding Fathers scratch their powdered wigs.
Story Highlights
- Constitutional scholar Alan Dershowitz met Trump at the White House to discuss third-term possibilities in a forthcoming 2026 book
- Proposed scenarios include Electoral College abstention forcing Congress to decide or Trump becoming Speaker of the House
- Trump displayed a “Trump 2028” hat in his office while his Chief of Staff insists he knows he cannot run again
- Legal experts dismiss the theoretical loopholes as practically impossible despite constitutional ambiguity
The Harvard Provocation That Started It All
Alan Dershowitz, Trump’s former impeachment lawyer and Harvard Law emeritus professor, recently strolled into the White House with more than just legal advice. He carried a draft manuscript titled “Can President Trump Serve a Third Term Under the Constitution?” The book, slated for 2026 publication, explores scenarios that would circumvent the 22nd Amendment’s prohibition on being “elected” to the presidency more than twice.
Dershowitz’s central argument hinges on constitutional wordplay. Since the amendment specifically bars being “elected” more than twice, he theorizes Trump could return through alternative pathways that don’t involve direct election. The timing of this White House meeting, coupled with Trump’s conspicuous display of a “Trump 2028” hat, has ignited speculation about intentions versus academic curiosity.
Electoral College Chaos and Congressional Kingmaking
The scenarios Dershowitz presents read like political fiction but rest on constitutional technicalities. The first involves widespread Electoral College abstention, where electors refuse to vote for any candidate, forcing the decision to Congress. Under the 12th Amendment, the House would select the president from the top three vote-getters, potentially including Trump if he received any electoral votes.
The second pathway involves Trump becoming Speaker of the House, then ascending to the presidency through strategic resignations of the president and vice president. While legally possible, this scenario requires a series of unprecedented political maneuvers that would make Machiavelli blush. Historical precedent offers little comfort for either approach, as no election has ever been decided by Congress due to Electoral College abstention.
Mixed Signals From Trump’s Inner Circle
White House Chief of Staff Susie Wiles told Vanity Fair on December 16 that Trump “knows he cannot run,” yet just one day later, the Wall Street Journal published Dershowitz’s detailed account of their constitutional discussion. This timing creates a fascinating contradiction between official positions and theoretical explorations that keeps political observers guessing.
Trump himself has sent mixed messages, stating in October 2024 that it’s “quite clear” he cannot run for a third term while simultaneously entertaining supporter chants and displaying campaign paraphernalia for 2028. When pressed about extended service, White House responses have been notably ambiguous, suggesting that “America would be fortunate” if Trump served longer, without explicitly endorsing the pursuit.
Legal Reality Check
Hofstra Law professor James Sample provides the sobering analysis that these scenarios lack practical feasibility. The Electoral College abstention theory ignores that most states legally bind their electors to vote for the popular vote winner. The Speaker succession pathway would require an implausibly coordinated series of resignations and appointments that would trigger immediate constitutional crises.
The 22nd Amendment, ratified in 1951 after Franklin D. Roosevelt’s four terms, was specifically designed to prevent exactly this type of creative interpretation. Its framers understood that ambitious politicians would seek loopholes, which is why the language focuses on being “elected” rather than “serving.” Even Dershowitz acknowledges the scenarios are uncertain and notes he doesn’t believe Trump will actually pursue them.
Sources:
Harvard Law Scholar Proposes Scenarios for Trump’s Third Term – Chosun Ilbo English
