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How Donald Trump Could Avoid Ever Being Prosecuted

You think the 22nd Amendment protects us from Donald Trump serving more than two terms in office? Let me tell you about the “Eligible Vice President Loophole.”

Donald Trump is once again telegraphing his intentions to serve beyond the constitutional limitation of two terms in office. Ha ha, some think, knowing that the 22nd Amendment says “No person shall be elected to the office of the President more than twice. . . .”

Yeah. . . elected. About that. I found this disturbing article on how Trump could conceivably serve a third term as president. See, assuming Trump is re-elected in 2020, when 2024 rolls around, he could be selected as GOP presidential nominee Ivanka Trump’s vice president.

Wait, wait. Trump wouldn’t be eligible, you say? The 12th Amendment says, “. . . no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” If Trump’s served two terms, he’s constitutionally ineligible, isn’t he?

Yeah. . . no. Constitutional eligibility for the presidency is being age 35, born in the United States, and a resident for 14 years. The 22nd Amendment deals with electability. That’s where this other article from Cornerstone Law Firm sheds some light on this constitutional loophole (emphasis mine):

The 12th Amendment only requires that an individual who is ineligible to become President cannot be Vice President. It does not say that someone who is ineligible to be elected President could be Vice President. Accordingly, the 22nd Amendment leaves open a loophole that an individual could be elected to the Vice Presidency (or the Speakership of the House), then rise to the Presidency.

So, if it is an Ivanka / Donald 2024 ticket, let’s imagine she is elected president and he becomes vice president. We know that a Very Special Memo* forbids the indictment of a sitting president, since impeachment is the remedy the Constitution provides for presidential malfeasance.

But does it prevent the indictment of a sitting vice president?

Well, if it does, all Donald needs to do is ride out Ivanka’s 2024 and 2028 terms. By 2032, he’s 86 years old. Then run as Don Jr.’s VP for 2032 and 2036. By 2040, he’s 94 years old, running as Eric’s VP until he’s 102, and he’s still got two more kids to run.

If the Very Special Memo doesn’t protect a vice president, then Ivanka just resigns the presidency and Donald becomes president, riding out the rest of her term until 2028.

That’s where it gets a little dicey for Donald. He needs to pick a Vice President who’ll have his back. According to the 25th Amendment, “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”

So, suppose after Ivanka’s resignation, new President Donald Trump nominates former President Ivanka Trump as his vice president. What’s to stop him?

Well, Congress. Maybe the GOP has the Senate to approve this, but what of a Democratically-controlled House, assuming such a thing still exists?

Remember, this would be a House rejecting an Ivanka who just won national election as president. Even so, let’s suppose the House has the cojones to reject her.

Then what?

I see nothing compelling Donald Trump to nominate anyone else. He “shall nominate” and he did. I don’t see anything in the 12th Amendment compelling a succession to the Vice Presidency and nothing in the Constitution compelling a president to have a one.

If there’s one thing we’ve learned in the Trump Era it’s that norms mean nothing to him. Trump operates from the world of “make me,” and if nothing in the Constitution makes him, he will not.

Of course, with no Vice President in office, the Speaker of that Democratically-controlled House would be next in line to the presidency. Trump’s motivation will be to keep nominating VPs who would have his back. The House’s motivation will be to reject them and keep the Speaker next in line.

Trump can’t run in 2028 in this scenario, so he’ll want to get some VP installed who can run as an incumbent. If not, regardless if it’s his VP running or a new GOP nominee, he needs that person to choose him again as VP.

Bottom line, so long as the GOP keeps winning the presidency, the party could shield Donald Trump from any criminal accountability by having its presidential nominee always choose him as their vice presidential nominee. They could conceivably go full-dictatorship by always having an ersatz nominee who runs, chooses Trump as VP, takes the oath of office, immediately resigns, then Trump serves out the rest of that term until the next ersatz nominee is chosen.

And since it takes 38 states to ratify constitutional amendments (notwithstanding potential future success of the Popular Vote Compact) it would be impossible to get enough red states onboard to make the changes to the 12th, 22nd, and/or 25th Amendments to close the “Eligible Vice President Loophole.”

I know. I’m re-reading this myself and chuckling at all the improbabilities. Trump living into his eighties? Any Trump winning future elections as the country grows younger and browner? Still, none of it seems as improbable as the last five years we’ve lived through. Best we just nip this Trump Dynasty in the bud this November.


* That double secret codicil in Article VIII of the Constitution that empowers some law clerks to write memos that supersede all common sense understanding of the concept “no man is above the law.”

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