Following his confirmation hearing before the Senate Judiciary Committee and concerns about President Trump seeking a third term in office, Trump’s nominee for solicitor general, John Sauer, deflected questions about whether he would advance arguments that violate the 22nd Amendment of the U.S. Constitution’s prohibition on Trump being elected to a third term as president. 

Senator Adam Schiff asked several questions for the record related to the 22nd Amendment as part of Sauer’s nomination process. Though Sauer simply stated “no,” when in response to the question “Can a person be elected to the office of the President more than twice?,” his other answers were far less definitive. 

Will you commit to not advancing arguments in court that violate the 22nd Amendment of the Constitution of the United States, if confirmed?

RESPONSE: As I have yet to be confirmed as Solicitor General, it would be inappropriate for me provide a position on behalf of the Department on possible future litigation positions. However, if confirmed, I will carefully review and consider the applicability of any federal law, the posture of any such case, the position held by the Government, and uphold my constitutional duty in any such litigation.

Do you agree that the 22nd Amendment, absent a constitutional amendment, prevents President Trump from seeking a third presidential term?

RESPONSE: Section 1 of the Twenty-Second Amendment states, in part, “No person shall be elected to the office of the President more than twice….” I have not reviewed any case law or other authorities addressing or interpreting this Amendment, nor formed an opinion on how it might apply it to any particular facts.

The 22nd Amendment states that “No person shall be elected to the office of the President more than twice.” A recent circuit court decision in the 10th District also explicitly affirmed that Trump is not eligible to be elected again, saying “The Twenty-second Amendment, however, mandates that President Trump cannot be elected to another term after the current one.”

Perhaps Sauer was evading the questions based on the convoluted theory that Trump could somehow serve a third term by getting elected vice president in 2028, after which the newly elected president would resign so that Trump could assume the presidency without getting elected. Even Trump supporters like Sens. Rand Paul and Josh Hawley have dismissed that idea. 

Despite the clear limitations in the 22nd Amendment, President Trump and his allies have repeatedly alluded to pursuing a third term in office. As the New York Times reported, days after he won a second term, Trump “mused about whether he could have a third presidential term.” Former advisor Steve Bannon told the assembled crowd at the Conservative Political Action Conference: “We want Trump in ’28. That’s what they can’t stand.” Trump’s former campaign attorney Jenna Ellis said, “If there’s a procedural way to accomplish it, he’s likely very much considering it.”

Unless a constitutional amendment is passed by 2/3 super majorities in both chambers of Congress and ratified by 3/4 of the states, Trump cannot be elected to the presidency once again, despite Trump’s repeated comments to the contrary. J. Michael Luttig, a retired federal appeals court judge who was appointed by Republican President George H.W. Bush said in an interview, “There is no argument whatsoever that President Trump can be elected to the office of president again.” 

The language of the 22nd Amendment is clear. So too are the obligations of the would-be Solicitor General. That should be obvious to the lawyer tasked with representing the American government before the Supreme Court. 

Header photo from C-SPAN

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