President Donald Trump is already seeking an illegal and unconstitutional third term.
Trump hasn’t officially declared his 2028 campaign or filed any paperwork, but he’s already openly flaunting “Trump 2028” campaign merch on his website. Trump himself prominently featured the hats on his desk during an October meeting in the Oval Office with House Minority Leader Hakeem Jeffries (D-New York) and Senate Minority Leader Chuck Schumer (D-New York). An official Trump White House staffer posted a photo of Trump showing off his 2028 merch to French President Emmanuel Macron and Ukrainian President Volodymyr Zelenskyy.
Beyond the hints and suggestions, former White House chief strategist Steve Bannon told the Economist in late October that there was already a “plan” underway to have Trump serve for an additional term. And when asked about the 22nd Amendment to the U.S. Constitution (which prevents presidents from being elected to more than two terms), Bannon said there were “many different alternatives” allowing Trump to continue to occupy the White House, and that he would reveal more “at the appropriate time.”
“People just ought to get accommodated with that,” Bannon said.
Trump is also not acting like someone who plans on leaving the White House in three years. He demolished the entirety of the White House’s East Wing, completely ignoring the process other presidents have gone through when making renovations to the White House. This is all to construct a gaudy ballroom whose cost has skyrocketed from $200 million to $350 million in just a matter of weeks. He justified the cost by saying it will be funded by private donations, though many of those donors have business pending before the administration that they no doubt hope to influence in their favor with their money.
Normally, the National Capital Planning Commission (NCPC) has to weigh in on any proposed changes to federal buildings. But White House staff secretary Will Scharf—who is one of Trump’s former personal lawyers—heads the NCPC. And like other Trump appointees to oversight positions, he has prioritized being loyal to his boss over doing his job. This meant that when Trump wanted to take a backhoe to the East Wing, there was no one there to stop him.
As shocking as the White House demolition was, it almost overshadowed the news of Trump demanding $230 million from taxpayers, arguing that the Department of Justice’s two federal investigations last year for alleged election interference on January 6, 2021 and alleged mishandling of classified documents merited compensation. Rep. Jamie Raskin (D-Maryland), who is the ranking member on the House Judiciary Committee, pointed out that Trump could technically make this payment to himself in secret, and wouldn’t become public until the DOJ’s release of its accounting at the end of the year.
Like Will Scharf on the NCPC, the person who would sign off on the DOJ paying Trump $230 million would be another one of Trump’s former personal attorneys. In this case, Deputy Attorney General Todd Blanche would have final say over whether his former client would get almost a quarter of a billion dollars directly from taxpayers. Such a payment would fly in the face of the Constitution’s Domestic Emoluments Clause, which expressly prohibits a president from getting paid any money beyond his presidential salary.
While Trump makes a mockery of the Constitution and the rule of law, the conservative supermajority on the Supreme Court of the United States (SCOTUS) appears entirely unconcerned. U.S. District Court and Circuit Court judges routinely rule against him, with the Associated Press finding that out of 326 lawsuits against his executive actions, 139 have been either partially or completely blocked. 93 have remained in effect, while another 94 are still pending as of October 17, 2025. But how lower courts rule matters little to the six SCOTUS conservatives.
SCOTUS has a habit of not only overwhelmingly taking Trump’s side, but also doing so via its emergency docket (or “shadow docket”). Rulings on the shadow docket tend to not contain the same detailed explanations for other Supreme Court rulings, and sometimes contain no rationale at all for its decisions. The Brennan Center for Justice found that since Trump’s second term began on January 20, the Court has issued 22 shadow docket rulings on Trump’s actions—with 19 of those being in Trump’s favor. The Court offered no explanation at for seven of those decisions.
10 federal judges told NBC News in September that they felt SCOTUS was biased in Trump’s favor given its pattern of overturning painstakingly researched lower court rulings in shadow docket decisions. Some of the judges specifically called on Chief Justice John Roberts to do more to rein in the conservative supermajority (of which he is a member) to bolster the integrity of the Court and its rulings.
It’s not hard to envision a scenario in which Trump is sued in U.S. district court for running for a third term, a judge rules against Trump, an appeals court upholds the district court’s decision, and the Supreme Court overturns that decision—potentially on the shadow docket, with no explanation. This is not out of the realm of possibility: Stanford University professor Adam Bonica found that between May and June of this year, lower courts ruled against Trump 94.3 percent of the time, going against him in 82 of 87 cases. During that same time frame, SCOTUS ruled in Trump’s favor 93.7 percent of the time in 15 of 16 cases.
Given the dire nature of a potential third Trump term and a captive Supreme Court, Democrats running in 2026 and 2028 have to be ruthless in their calls for accountability for both Trump and the Supreme Court, and run on and embrace bold positions that would typically be deemed extremist in any other time. Should they fail to meet the moment, any Democratic congressional majorities and presidency would likely be viewed by future generations as a brief interregnum before the next lawless, fascist Republican administration.
How could Trump serve a third term?
While Bannon didn’t elaborate on his “plan” for Trump to remain in office, he’s right in that there are “alternatives” to Trump declaring his candidacy and appearing at the top of the Republican ticket. One potential alternative is Trump serving as a Republican nominee’s running mate. If, for example, Vice President JD Vance ran for the 2028 Republican presidential nomination and selected Trump as his running mate, he could simply resign after his inauguration on January 20, 2029 and allow Trump to become president once again. This would not conflict with the 22nd Amendment, according to Cornerstone Law Firm in Reading, Pennsylvania (emphasis theirs):
“The 22nd Amendment only requires that someone not be elected to the Presidency more than twice,” attorney Joel A. Ready wrote. “Someone who was elected to two terms on his own is still eligible to be Vice President and to rise to the Presidency upon the death, resignation or removal of the President.”
Another potential alternative allowing Trump to serve as president would depend on Republicans maintaining control of the House of Representatives. There’s technically nothing stopping the House from electing a speaker who is not a sitting member of Congress. When former House Speaker Kevin McCarthy (R-California) was ousted in the fall of 2023, Trump briefly entertained the idea of being elected speaker, as some members of the House Republican Conference suggested. Because the speaker is second in the line of succession to the presidency, Trump potentially could, as speaker, once again occupy the White House if both the president and vice president resigned or were removed from office via impeachment or the 25th Amendment.
Additionally, Trump could still serve a third term despite not being on the ticket at all: If there were a figurehead Republican ticket in 2028 that openly ran on winning the election while spending their time on the campaign trail saying that presidential electors from states they won would cast their Electoral College ballots for Trump, it could mean that just 270 or more Republican electors in a handful of state capitols send Donald Trump back to the White House in December of 2028. While 38 states have laws on the books prohibiting faithless electors (who don’t cast their ballots for the candidate their state voted for), and while many of those states include large Republican states like Florida and Texas, those state legislatures have plenty of time to change those laws to accommodate a potential third Trump term.
And should there be a stalemate in 2028 where neither ticket gets 270 electoral votes, and the election goes to the House of Representatives in what’s referred to as a “contested election.” Each state’s respective House delegation gets one vote, rather than each individual representative casting their own ballot. This means that even though California has 53 representatives and Wyoming has one, there would only be one vote apiece from both California and Wyoming’s delegations. And because Republicans have a slight edge in the number of state delegations in the House, Trump could feasibly win a third term if the 2028 election were decided by the House of Representatives.
These types of end-runs around the Constitution are typical in authoritarian regimes. Between 2008 and 2012, Russian President Vladimir Putin—who was barred from serving a third term—served as prime minister under then-President Dmitry Medvedev (who promised to appoint Putin to the role during his campaign). After Medvedev’s presidency ended, Putin once again ascended to the role. The decidedly authoritarian tone of Trump’s second term means that none of these scenarios should be scoffed at or dismissed outright.
Democrats will have to get their hands dirty in 2029
One of the most defining historical moments for democracy came in the form of the Nuremberg Trials between 1945 and 1946. The International Military Tribunal convened by the United States, the United Kingdom, France, and the Soviet Union prosecuted 22 of the most senior living leaders of the Nazi regime, along with multiple Nazi organizations. All but two were convicted of crimes against humanity and war crimes; 12 were convicted of crimes against peace, and four organizations — the Leadership Corps of the Nazi Party, the SS, the Gestapo, and the SD (Nazi Germany’s intelligence agency) — were found to be criminal. To this day, Germany makes Holocaust remembrance an essential part of its culture as a way of urging Germans to be vigilant and never again allow something as horrific as the Nazi regime to ever exist again.
The flipside of this could perhaps be seen in the United States after the Civil War. After multiple states seceded from the Union and waged a treasonous war against the United States all for the sake of preserving chattel slavery, that institution was formally broken after the last slaves were freed on June 19, 1865 (also known as Juneteenth). General William Tecumseh Sherman initially proposed dividing up Confederate plantations and giving freed slaves “forty acres and a mule” as reparations.
However, after President Abraham Lincoln was assassinated, President Andrew Johnson scuttled his predecessor’s reconstruction plans, pardoned many Confederate generals and leaders, and returned most of the plantation land seized by the Lincoln administration back to those same slave owners. Confederate President Jefferson Davis served just two years in prison. Confederate states were admitted back into the union in exchange for ratifying the 13th Amendment (which abolished slavery) and most leaders went unpunished in the name of national reconciliation.
Former Confederate states then adopted “Black Codes” to restrict the freedoms of Black Americans, imposed Jim Crow policies relegating them to second-class citizen status, and carried out thousands of lynchings in which Black people were brutally and publicly murdered, sometimes alongside their families, between 1889 and 1922. The period between the end of the Civil War and the early 1920s is rife with race riots and massacres, most of which involved mobs of white people committing mass murder against Black people in the South. White on Black racial discrimination continues across the United States today in housing, hiring, policing, and other facets of daily life. Even gains made by the Civil Rights Movement, like Section 2 of the Voting Rights Act (which prohibits racial discrimination in voting), may be entirely undone by the conservative SCOTUS supermajority.
If Democrats are hoping to both stop Trump from serving a third term and undo the considerable damage of his second term, they will have to be both relentless and ruthless in meeting the moment. This means doing things that will ruffle the feathers of legacy media editorial boards, and completely eschewing any semblance of bipartisanship with fascist collaborators and not repeating the mistakes made in the wake of the Civil War. Just as Trump has fully embraced the Heritage Foundation’s far-right Project 2025 playbook, Democrats should run on and carry out their own Project 2029 plan for reconstruction of democracy and the rule of law after Trump. For starters, this could mean something resembling Nuremberg Trials in the United States:
- White House deputy chief of staff Stephen Miller, Homeland Security Secretary Kristi Noem, and every single Trump administration official and employee responsible for the illegal and unconstitutional detention and deportation of both legal immigrants and U.S. citizens while denying them due process could be prosecuted.
- Both Attorney General Pam Bondi and Deputy Attorney General Todd Blanche could be prosecuted for allowing the Department of Justice to be weaponized against Trump’s political opponents, and for transferring convicted child sex trafficker Ghislaine Maxwell to a low-security prison camp in defiance of Bureau of Prisons rules preventing violent offenders from serving their sentences in those facilities.
- Defense Secretary Pete Hegseth could be prosecuted for allowing the U.S. military to be deployed against US citizens in defiance of the Posse Comitatus Act of 1878, and for his casual disclosure of classified information via text message.
- Tesla and SpaceX CEO Elon Musk could be prosecuted for carrying out mass firings of federal employees without ever being confirmed by the Senate to an official position and violating the privacy rights of millions of Americans.
- And of course, Trump himself could be prosecuted for anything from accepting bribes, to profiting from the presidency, violating and ignoring federal court orders, or any of his alleged crimes preceding his second term, like election interference and mishandling classified documents.
Any attempt at reconstruction post-Trump would be incomplete without making strict changes to the Supreme Court. The Court’s current structure allows it to act with total impunity, given that judges serve lifelong terms and the impeachment system is arguably broken. Democrats can and should argue for expanding the number of justices—which can be done through mere legislation, as the Constitution says nothing about how many justices serve on the Court—and for imposing term limits on justices.
Given that there are 13 circuits (11 regional circuits, the D.C. Circuit and the Federal Circuit), Democrats could propose legislation requiring one Supreme Court justice for each federal circuit, to be expanded whenever new circuits are added. There’s also a case to be made for expanding the number of federal circuits, and adding new district courts within each circuit given the massive backlog of cases overwhelming the federal judiciary.
Democrats running in both 2026 and 2028 should be pressured repeatedly on how they plan to enforce the laws of the United States when they are broken, and how they plan to rein in an increasingly rogue Supreme Court. How far the Democrats ultimately go in providing justice and accountability depends entirely on how much the American people push them. But America can’t afford a half-hearted response to our current Constitutional crisis, and the people should wholly reject any candidate who won’t make bold promises to bring this lawless administration to justice.
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