Donald Trump 2024 can be stopped by the 14th Amendment to the US Constitution.

The acquittal of former President Donald Trump by the United States Senate in his impeachment may not be the end of the line in efforts to prevent him from seeking the presidency again.

If Trump chooses to run for the White House in 2024, opponents are likely to turn to a constitutional provision adopted after the Civil War to try to stop him. The Supreme Court could have the last word.

The Fourteenth Amendment to the Constitution disqualifies from future office any former elected official and military officer who “has been involved in an insurrection or rebellion” against the United States. Ratified in 1868, the language in Section 3 of the amendment was directed at former Confederate civilian and military leaders.

But it could apply to people who incited or participated in the Jan.6 attack on Capitol Hill, legal experts said, noting that a congressional commission to investigate the attack and the lawsuits against Trump could help clarify their role in the deadly insurrection. of that day. .

“If Trump runs again in 2024, I think it’s very likely that we will see efforts to keep him off the ballot for 14th Amendment reasons,” said Daniel Hemel, a law professor at the University of Chicago.

But there is a lot of uncertainty about how it could happen and whether Congress or just state officials would be involved.

Keep Confederates out of office

The drafters of the Fourteenth Amendment wanted to prevent former officials who joined the Confederacy from resuming public service, without an explicit vote from Congress to restore their eligibility. Section 3 was enforced for several years at both the state and federal levels, according to Gerard Magliocca, a professor at Indiana University’s Robert H McKinney School of Law. But in 1872, by two-thirds of the votes of the House and Senate, Congress lifted the ban against most of those who had been removed from office.

Since then, it is fair to say, the provision has fallen into disuse. “Nobody really talks about it,” said Laura Edwards, a professor of legal history at Princeton who has studied the 14th Amendment. “You haven’t had to talk about it since the Civil War.”

How could it be invoked against Trump

At least two Democrats in Congress say they are working on it. Democrat Steven Cohen said he is drafting legislation that he hopes to introduce in the next few weeks that would allow the constitutional provision to be enforced against anyone with ties to violence on Capitol Hill last month. The bill would authorize the Justice Department to bring cases against potential candidates and appoint a federal court to handle any effort to keep candidates off the ballot, Cohen said.

The Capitol mutiny to try to prevent Congress from certifying President Joe Biden’s victory in the Electoral College “was such a heinous and reprehensible act since Benedict Arnold,” Cohen said, referring to the Revolutionary War general who was a traitor to the American cause.

Democrat Debbie Wasserman Schultz said in a statement that she is working on a measure “that would prevent traitorous men like Donald Trump and others from ever serving in a government they once sought to overthrow.”

The legislation would require Biden’s signature. Congress could also pass a resolution declaring that Trump and perhaps others are disqualified from future office, although, as Hemel pointed out, “that non-binding resolution would be worth no more than the paper it is written on.”

Yet even if Congress does nothing, state election officials, or even state courts, could say that Trump cannot appear on his ballots because he participated in an insurrection, the professors said.

With or without the involvement of Congress, that matter would inevitably go to court, said Elizabeth Wydra, president of the Center for Constitutional Responsibility. “But I think it is okay to try a constitutional provision that has not been used often,” Wydra said.

What would happen then?

The judges would have to answer three questions, Magliocca said.

First, was there an insurrection? Trump’s lawyers argued at the impeachment trial that there was none, but Senate Republican Leader Mitch McConnell called the events of January 6 a failed insurrection, and the term was used repeatedly by Democrats in the trial process. political and widely used by the media. . Merriam-Webster defines insurrection as “an act or instance of rebellion against civil authority or an established government.”

Second, did Trump get involved in an insurrection? Here, too, Trump’s team and House prosecutors differ. The answer could depend on more information that may emerge from a Congressional investigation into the January 6 riots, a lawsuit filed this week by Democrat Bennie Thompson against Trump or the court case over Trump’s disqualification, Magliocca said. “We need a lot more development of the facts,” he said.

Third, is Trump even covered by Section 3? The section does not explicitly mention the presidency, but Magliocca is among legal scholars who believe Trump could be excluded.

If the presidency were excluded from the provision, former Confederate President Jefferson Davis and the Confederation’s top military commander, Robert E Lee, would have been excluded from most positions, but not from the presidency, he said.

Final answer

Ultimately, the Supreme Court would likely be asked to intervene, and possibly in the heat of the presidential campaign, as the problem would likely only arise if Trump announced his candidacy and sought to qualify for the ballot.

That development might not appeal to Chief Justice John Roberts, who presided over Trump’s first impeachment. Roberts has been eager to keep the court out of cases involving Trump’s unsubstantiated claims of voter fraud, which were overwhelmingly rejected by courts and state election officials, and partisan political controversies where possible.

“I don’t think the potential to give the Chief Justice heartburn is a reason to avoid enforcing the Constitution, but I’m sure he would be very upset to have this land in his court,” Wydra said.

Another possibility, Magliocca suggested, is that the specter of having to testify in court about his actions on Jan.6 could be enough to prevent Trump from running in the first place.