Explained: Is it possible to prevent Trump from running for president again? This is what experts think

Former US President Donald Trump’s legal troubles and controversies surrounding his involvement in attempts to overturn the 2020 election have spurred a spirited debate among legal experts.

This debate revolves around whether Trump is disqualified from seeking the presidency again under the 14th Amendment to the United States Constitution.

As the 2024 election cycle draws near, this issue is expected to play out in the courts, adding another layer of complexity to the ever-evolving political landscape, as reported by Forbes.

Section three of the 14th Amendment, which was enacted in the aftermath of the American Civil War, contains a pivotal clause that is central to this debate.

It states that no person shall “hold any [state or federal] office” if they’ve previously taken an oath of office and then “engaged in insurrection or rebellion against the [US], or given aid or comfort to the enemies thereof.”

A preprint article sparks the debate

Conservative legal scholars William Baude and Michael Stokes Paulson ignited this debate with a forthcoming law review article. In their article, now published as a preprint, they assert that Trump’s actions during the January 6, 2021, insurrection qualify as insurrection under the 14th Amendment. They argue that this section of the amendment is still in effect and “ready for use,” allowing state officials to bar Trump from the ballot without requiring additional legislation or court rulings.

Support for disqualification under the 14th amendment

Baude and Paulson’s view is echoed by several legal experts, including those on the conservative side of the political spectrum. Northwestern University law professor Steven Calabrisi, a founder of the conservative Federalist Society, argues that Trump’s exhortations to his supporters to “fight like hell” in the lead-up to January 6, combined with his failure to intervene once the insurrection began, constitute aiding and abetting the insurrection. This, in Calabrisi’s view, merits disqualification, even in the absence of a conviction for incitement.

Interestingly, a joint article by conservative legal scholar J. Michael Luttig and left-leaning legal expert Laurence Tribe, published in The Atlantic, also supports Trump’s disqualification under the 14th Amendment. They contend that any person who attempted to subvert the Constitution, declared that it should be “terminated,” and sought an immediate return to the presidency cannot, in good faith, take the oath required of presidents.

Opposition to disqualification

Despite the growing support for disqualifying Trump under the 14th Amendment, dissenting voices remain within the legal community. Stanford Law professor Michael McConnell, while expressing his low regard for Trump, cautions against allowing secretaries of state to disqualify political opponents from the ballot. He argues that such a practice would be profoundly anti-democratic and questions whether the events of January 6 rise to the level of an insurrection. McConnell also raises concerns that disqualifying Trump could empower partisans to seek disqualification whenever a politician supports or speaks in favoUr of the objectives of a political riot.

Harvard University law professor Noah Feldman opposes the 14th Amendment strategy in a Bloomberg op-ed. Feldman notes that a 1869 circuit court ruling held that Section Three of the 14th Amendment could only go into effect if Congress passed legislation directing its implementation. This view challenges Baude and Paulson’s argument that the section is already operational.

Also watch | Will Donald Trump be disqualified from the 2024 Presidential Elections?

Baude and Paulson’s case for disqualification

Baude and Paulson assert that Trump undeniably “engaged in” and provided “aid or comfort” to individuals involved in the insurrection. In their assessment, Trump’s actions and statements during this period are unequivocal and disqualify him from seeking the presidency or any other state or federal office governed by the Constitution.

Differing legal opinions and the potential for a supreme court decision

Legal experts are deeply divided over whether Trump’s conduct meets the criteria for disqualification set forth in the 14th Amendment. Although some have already filed requests with officials in various states to disqualify Trump from the ballot, there is no indication that these efforts will succeed. However, this dispute is likely to make its way to the highest legal authority in the land—the Supreme Court—as the 2024 election approaches.

Background on previous uses of the 14th amendment

The discussion surrounding Trump’s eligibility under the 14th Amendment follows previous attempts to employ this constitutional provision during the 2022 midterms.

Critics sought to bar Rep. Marjorie Taylor Greene and former Rep. Madison Cawthorn from the ballot over their ties to the events of January 6.

These efforts yielded mixed results, with an administrative law judge ruling against disqualifying Greene but a federal appeals court ruling in favour of the possibility of disqualification under the 14th Amendment. In an unprecedented move, local commissioner Couy Griffin in New Mexico was removed from office and barred from holding office again due to his involvement in the January 6 riot, marking the first use of the 14th Amendment for such a purpose since 1869.