Let me start by saying, in all seriousness, that my admiration for Alan Dershowitz was one reason I decided, mid-career, to chuck newspaper work and attend law school. He was a legend in my undergraduate years at Harvard in the late 1960s and early 1970s, when (as The Harvard Crimson later put it), he was known as “that angry young professor with the long hair and loud voice.” I was angry, and still had hair, and thus considered him a kindred spirit.
But it was his 1982 book, The Best Defense, that really inspired me; it includes a compelling account of two young brothers, Raymond and Ricky Tison, who helped their father break out of an Arizona prison and then faced the death penalty for “felony murder” when the father, though not they, committed subsequent murders. Dershowitz represented the brothers all the way to the Supreme Court, which eventually held that the death penalty was appropriate for the brothers’ offense; an Arizona state court would reduce their sentences to life in prison.
The Tison brothers, let alone their dad, were not particularly appealing. That was the point. The constitutional right to a defense isn’t restricted to the innocent or the appealing. Proving guilt beyond a reasonable doubt is what the state must do each time it brings its power to bear on an individual, appealing or repellent. No one, guilty or not, should be subject to cruel and unusual punishment.
Years later, as a law professor, I gladly took part in a symposium honoring his career, in which I wrote, “On Sundays, Tuesdays and Thursdays, I say to myself, that Alan Dershowitz, what a brave civil libertarian, terrific scholar, great force in American life. On Mondays, Wednesdays and Fridays, that Alan Dershowitz, what a troublemaker, he’s completely wrong about everything. On Saturday, I rest.”
And in 2006, one of my books was adopted for the Gryphon Editions’ Notable Trial Series, with a generous introduction by Dershowitz.
That said, over the years, as the wealth and social status of his clients have increased (ascending from the Tison brothers to Claus von Bulow to O.J. Simpson to Harvey Weinstein to Jeffrey Epstein to Donald Trump), I have noted that shrugging off critics seems less a part of his skill palette. He dishes it out but doesn’t want to take it.
When a political scientist accused him of plagiarism, Dershowitz wrote to the offender’s superiors demanding that he be denied tenure; the university obliged. When a Yale psychiatrist suggested that Dershowitz’s speech patterns seemed to be drawing closer to those of President Trump, Dershowitz demanded that Yale rescind her teaching appointment; Yale obliged. When Miami Herald reporter Julie K. Brown’s dogged reporting broke open the full extent of the Jeffrey Epstein scandal, Dershowitz (lawyer for and a friend of Epstein) wrote to the Pulitzer Prize committee and enjoined them from giving Brown the prize. They did not.
I have no tenure; I am not currently teaching; and though I once won a hamster for “best-dressed Boy Scout of Troop 718,” I have never been in contention for the Pulitzer. Nonetheless, if I had, let’s say, two pierogis, and Alan Dershowitz wanted one, I would gladly give it to him. That’s important because, when denied a pierogi in 2025 by a Martha’s Vineyard vendor who disapproved of his politics, Dershowitz announced “I’m suing” to his social-media followers. No litigation ensued, perhaps due to the complete lack of what we lawyers call a cause of action.
Now, Dershowitz has written a brief book—and a brief —suggesting that 2028 may not, in fact, mark the end of our long national nightmare. It bears the arresting title of Could President Trump Constitutionally Serve a Third Term?: My Nonpartisan Legal Analysis.
Dershowitz is not the first scholar to claim that the Twenty-Second Amendment, which imposes a two-term limit on the president, contains loopholes that allow a president to serve a third term. Indeed, in scholarly terms, very little in his new book is particularly striking or original, except perhaps its timing.
Before we get to that, though, let’s consider the argument: The Constitution of 1787 contained no provision limiting presidential re-election. To be “eligible to the Office of President,” a candidate was required to be a “natural born citizen,” at least 35 years old, and a resident of the United States for 14 years at some point in their life.
Nonetheless, George Washington’s refusal to run for a third term in 1800 gave rise to the custom that presidents serve no more than two terms. That consensus was shattered in 1940, when the combination of Democratic political strength and international crisis convinced voters that Franklin D. Roosevelt should serve a third term, and, as the Second World War dragged on, be elected to a fourth, of which he lived to serve less than three months.
After Roosevelt’s death, the Democratic Party’s stranglehold on power dissipated. In the 1946 elections, the Republican Party took both houses of Congress. Among its business: make sure there would never be another FDR. Both houses passed resolutions proposing the following limit: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.” State legislatures quickly ratified the amendment, and it became part of the Constitution in February 1951.
But earlier scholars have noted that the Twenty-Second Amendment states that no one can be elected president more than twice. It doesn’t say that no one can serve as president for more than two terms. So the argument runs, a president who has been elected twice might thus serve a third term—if they could gain the office without the bother of being elected.
I apologize for what follows, gentle reader: an excursion into the surreal and often repellent wonderland that constitutional lawyers and scholars mischaracterize as “textualism.” I am all for texts; I was an English major. But constitutional “textualism” is less like the creative and compassionate reading of great literature than like the handiwork of incurious high school biology students, who dissect hapless frogs, scribble desultory notes as the bell rings, and then take off for cheerleading practice. To these “textualists,” words and phrases can be chopped into tiny bits and considered without concern for their full context, or for the full range of meanings an English speaker might find in the document that contains them.
Applying constitution-grade “textualism,” Dershowitz asks the reader to consider whether a twice-elected president could constitutionally serve again under the following circumstances (to be elaborated later):
- being elected or appointed vice president and later succeeding to the presidency;
- being elected or appointed speaker of the House and succeeding under the Presidential Succession Act;
- becoming vice president through appointment under the 25th Amendment and then succeeding;
- being chosen by the House of Representatives following an Electoral College deadlock.
These queries leave me profoundly torn. Part of me says the answer is “no”; the other part says “Fuck, no.” Dershowitz and some other scholars say that there is doubt. They are (how shall I put this?) wrong.
The first problem with the “serve” v. “elect” argument is that the Constitution itself nowhere uses the word “serve” to describe a president’s role. Article II prescribes the qualifications for a president: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
In constitutional language, presidents don’t “serve.” They are, to be sure, paid for their “services,” but in gaining and holding office, they are “elected” and then “enter on the Execution of [the] office.” The words “eligible” and “elect” constitute a valid presidency in the Constitution’s language.
The Oxford English Dictionary traces both words to the same Latin root, eligir, meaning “choose.” In a political context, the OED says, “eligible” means “Fit or proper to be chosen for an office, position, award, etc.; regarded as fulfilling the necessary criteria or qualifications to be considered for a particular benefit.” “Elect” means “To choose (a person) by vote for appointment to an office or position of any kind.” Or to put it differently, “eligible” means “electable.” So, someone who can’t be elected three times is not eligible, and can’t, in constitutional language, hold the office three times. It’s not simply that a three-term president would have to be “elected”—it is that in the language of the document, “eligible” means not only able to be elected but also “allowed to serve.”
This immediately knocks out the most commonly proffered pathway to a third term—that is, a two-term president picking a complicit running mate (call him, for the sake of argument, “J.D. Vance”), running on a ticket with the stooge at the top and then, immediately after Inauguration Day, “succeeding” to the office upon Vance’s resignation (or unsolved disappearance on a presidential visit to New Jersey).
It won’t work. Why? The people do not elect a president or a vice president. Presidents are elected by electors (who themselves need not even be elected by the people). The “election” to which the Twenty-Second Amendment refers is that vote. Vice presidents are elected in the same way under the Twelfth Amendment, which provides that the presidential electors mark a separate ballot for vice president, but cautions that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” So, our two-term president (call him, let’s say, “John Barron”) is, by the combined terms of Article II and the Twelfth and Twenty-Second Amendments, ineligible to be president or vice-president. This would be true whether the ambitious ex-president is elected vice-president by the electors under the Twelfth Amendment or is nominated to the vice-presidency by the president and confirmed by a vote of Congress under the Twenty-Fifth Amendment.
The absence of the word “serve” is irrelevant. “Elected” deals with it, and there’s no loophole in the text.
Okay, what about possibility two: being elected or appointed speaker of the House and then succeeding under the Presidential Succession Act? It’s certainly true that by the terms of Article I, the speaker need not be a member of the House. But what good does that do our desperate office-seeker? Look at the text of 3 U.S.C. Sec. 19, which places the speaker next in line after the vice-president—unless “the Speaker fails to qualify as Acting President.” What does “fails to qualify” mean? I have, over the years, tried to puzzle out the meaning of this phrase, and I confess I come up short. It could mean nothing more than “fails to show up for work that particular day,” like Wally Pipp, who sat out a Yankees game in 1925 and was then elbowed out of history by Lou Gehrig—but please, isn’t it somewhat less crazy to read it to mean “is found not to meet the eligibility requirements, one of which is not having already been elected to two terms”? Would anyone argue that a speaker could become president even if they were not 35 years old, were not a “natural-born” citizen, or had not been resident in the U.S. for 14 years—none of which is required for House service? That someone who served two terms would not also have “failed to qualify”? In fact, do we need statutory language to call bullshit on anyone who claimed they could?
Number three—“becoming vice president through appointment”—is also a non-starter. To begin with, since we are being all textual ‘n’ stuff, the Twenty-Fifth Amendment doesn’t confer on the president a power to “appoint” a new vice-president; instead, the president “nominates” a candidate who must receive “a majority vote” of the two Houses of Congress. Wait, did you say “vote”—hmm—that is an electoral process, amirite? And besides, do we really think the President could win confirmation for the Duke of Sussex (not “natural born,” don’t you know), or Jenna Ortega, who will be 24 this fall, by playing cute wording tricks? Why, no; neither Harry nor Jenna is eligible, and thus neither can reach the office by election, even in an election by Congress with only one candidate. By the same token, a president who has served two terms could not be elected vice president by a majority vote of Congress.
Four represents the obscure provision of Article II that brought us John Quincy Adams: If no presidential candidate wins a majority of the electors, the choice of the president falls to members of the House with votes “taken by States.” Do we really need to relitigate the point that that being “incapable of being elected” (per OED) would mean that one could not be “chosen” by the vote of the House? The fact that the voters are the House members, voting by states, doesn’t make the slightest difference—most presidents are “elected” by the electors, not the people at large; the Representatives elect our imaginary third-termer. The ineligibility applies to the person, not the method of selection or the identity of the voters.
I will stop here because realizing how much longer I could go on generates in my soul a deep self-loathing and dissatisfaction with my life choices. Constitutional law is exhilarating because, and only to the extent that, it involves reading a short document that has served for centuries as the political charter of a free people. To see it subjected to pseudo-analytical language games reminds me of what Evelyn Waugh once wrote about Stephen Spender: “[T]o see him fumbling with our rich and delicate language is to experience all the horror of seeing a Sèvres vase in the hands of a chimpanzee.”
Now let’s talk about timing. As we careen through the mounting chaos of Trump’s second term and his acolytes troll the public with prophecies of a third, some might just possibly see this particular book as perhaps ever so slightly ill-timed. The author’s claim that it is “an honest, objective, nonpartisan analysis of a complex series of interesting issues” is rendered somewhat less credible by the title, which makes clear he really is talking about the current president, with his publicly expressed desire for a third term. The book isn’t called Could Some Hypothetical President Serve a Third Term? It is Trump-specific, and it lands in the midst of an all-out assault on the idea that the Constitution provides any check at all on Trump’s power. Its analysis, if taken seriously, would destabilize one of the few certainties of our constitutional order—to make a dreadful political outcome that is currently impossible a bit more possible. That makes assessing its honesty and objectivity more challenging.
Dershowitz, naturally, denies this:
Anyone reading this book carefully cannot reasonably conclude that it is partisan advocacy rather than a neutral exercise in constitutional analysis. Former President Barack Obama, because of his relative youth (sixty-four), is at least as likely to benefit from my analysis as seventy-nine-year-old President Trump.
That particular dog won’t even leave the kennel, much less hunt.
Let’s review the bidding: Donald Trump, not Barack Obama, is the current president of the United States. Donald Trump, not Barack Obama, has demanded a third term. Donald Trump, not Barack Obama, has followers who attacked the United States Capitol to win a second term for Trump to which he hadn’t been elected. Donald Trump, not Barack Obama, is currently the commander-in-chief of the military. Donald Trump, not Barack Obama, has recently attempted to use the American military for politicized “law enforcement.” Donald Trump, not Barack Obama, has threatened to invoke the Insurrection Act and impose military rule on parts of the country he deems unfriendly to him.
And Donald Trump, not Barack Obama, is a former client of Dershowitz.
Anyone reading this book in 2026 who perceives it as dispassionate and neutral should pause before replying to emails from Nigerian princes. I am not a judge of intentions; I have no clue whether the author aims to please his former client. So, let’s disregard that.
But anyway—here, man, take both pierogis. I’ve lost my appetite.
