If Trump chooses to run for the White House in 2024, opponents are likely to call on a constitutional provision adopted after the Civil War to try to stop him. The Supreme Court could have the final say.
The Constitution's 14th Amendment disqualifies from future office any former elected officials and military officers who "shall have engaged in insurrection or rebellion" against the United States. Ratified in 1868, the language in Section 3 of the amendment was aimed at former Confederate civilian and military leaders.
It could be applied to people who incited or took part in the Jan. 6 attack on the Capitol, legal scholars said, noting that a congressional commission to investigate the attack and lawsuits against Trump could help make clearer his role in the deadly insurrection that day.
"If Trump runs again in 2024, I think it's very likely that we'll see efforts to keep him off the ballot on Fourteenth Amendment grounds," Daniel Hemel, a University of Chicago law professor, wrote in an email.
But there is a lot of uncertainty about how it might happen and whether Congress or just state officials would be involved.
KEEPING CONFEDERATES FROM OFFICE
The drafters of the 14th Amendment wanted to keep former officials who joined the Confederacy from resuming public service, without an explicit vote from Congress restoring their eligibility. Section 3 was enforced for several years at both the state and federal level, according to Gerard Magliocca, a professor at the Indiana University Robert H. McKinney School of Law. But in 1872, by a two-thirds vote of the House and Senate, Congress lifted the prohibition against most who had been barred from office.
Since then, it's fair to say, the provision has fallen into disuse. "Nobody talks about it really," said Laura F. 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 IT COULD BE INVOKED AGAINST TRUMP
At least two Democrats in Congress say they are working on it. Rep. Steven Cohen, D-Tenn., said he is drafting legislation he hopes to unveil in the coming that weeks that would allow enforcement of the constitutional provision against anyone with ties to the violence at the Capitol last month. The bill would authorize the Justice Department to bring cases against would-be candidates and designate a federal court to handle any efforts to keep candidates off the ballot, Cohen said. The Capitol riot to try to keep Congress from certifying President Joe Biden's Electoral College victory "was about as heinous and reprehensible an act since Benedict Arnold," Cohen said, referring to the Revolutionary War general who was a traitor to the American cause.
Rep. Debbie Wasserman Schultz, D-Fla., said in a statement that she is working on a measure "that would prevent traitorous men such as Donald Trump and others from ever serving in a government they once sought to topple."
Legislation would require Biden's signature. Congress also could pass a resolution declaring that Trump and perhaps others are disqualified from future office, though, as Hemel pointed out, "that nonbinding resolution would be worth no more than the paper it's written on."
Even if Congress does nothing, though, state elections officials, or even state courts, might say that Trump cannot appear on their ballots because he engaged in insurrection, the professors said.
With or without congressional involvement, that matter would inevitably head to the courts, said Elizabeth Wydra, president of Constitutional Accountability Center. "But I think that's OK, testing out a constitutional provision that has not often been used," Wydra said.
WHAT WOULD HAPPEN THEN?
Judges would have to answer three questions, Magliocca said.
First, was there an insurrection? Trump's lawyers argued in the impeachment trial that there wasn't, but Senate Republican Leader Mitch McConnell has called the events of Jan. 6 a failed insurrection, and the term was repeatedly used by Democrats in the impeachment process as well as widely used by the media. Merriam-Webster defines insurrection as "an act or instance of revolting against civil authority or an established government."
Second, did Trump engage in insurrection? Here, too, Trump's team and the House prosecutors differ. The answer could depend on more information that could emerge from a congressional investigation of the Jan. 6 riot, a lawsuit filed this week by Rep. Bennie Thompson, D-Miss., 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 doesn't explicitly mention the presidency, but Magliocca is among legal scholars who believe Trump could be barred. If the presidency were excluded from the provision, former Confederate president Jefferson Davis and the Confederacy's top military commander, Robert E. Lee, would have been barred from most offices but not the presidency, he said.
Ultimately, the Supreme Court probably would be asked to weigh in - and possibly in the heat of the presidential campaign since the issue probably would arise only if Trump announced his candidacy and sought to qualify for the ballot.
That development might not please Chief Justice John Roberts. Roberts, who presided over Trump's first impeachment trial. Roberts has been eager to keep the court out of cases related to Trump's baseless claims of election fraud, which were overwhelmingly rejected by courts and state elections officials, and partisan political controversies when 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 unhappy to have this land at his court," Wydra said.
One other possibility, Magliocca suggested, is that the specter of having to testify in court about his actions on Jan. 6 could be enough to keep Trump from running in the first place.
Associated Press writer Jessica Gresko contributed to this report.