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Will Trump be able to ascend to the presidency again?

The fact that the Senate has acquitted former President Donald Trump does not necessarily mean that attempts to prevent him from ascending to the White House have failed. If Trump runs as a candidate again in 2024, his rivals will most likely wield a constitutional clause passed after the Civil War to try to stop him and the matter could ultimately be left to the Supreme Court.

The 14th Amendment to the Constitution prohibits any candidacy of political or military leaders “who participated in an insurrection or rebellion” against the United States. The clause, ratified in 1868, specifically contains in its Section Number 3 a prohibition that prevents the rise to power of leaders of the Confederacy.

It could well apply to people who incited or participated in the January 6 assault on the Capitol, experts say, noting that the imminent Congressional investigation and the numerous lawsuits brought against Trump could elucidate their involvement in the events.

“If Trump runs again in 2024, I think it is very likely that others will try to block him using the 14th Amendment,” said Daniel Hemel, a law professor at the University of Chicago.

Still, there is uncertainty about how exactly that would happen and whether Congress or regional authorities would be responsible.

The drafters of the 14th Amendment wanted to prevent the return to power of politicians who participated in the Confederation of Southern States and Section 3 was applied several times, both at the federal and state levels, said Gerald Magliocca, a professor at the School of Law. Robert H. McKinney of Indiana University, but in 1872, by a two-thirds majority in both the House of Representatives and the Senate, Congress overturned the ban for most of those named.

Obviously, since then the clause has not been applied.

“Nobody talks about it anymore,” said Laura F. Edwards, professor of legal history at Princeton University. “There has been no need to mention it since the Civil War.”

At least two Democratic congressmen have announced plans to repower that tool. Steven Cohen of Tennessee says he is preparing a law that would prohibit anyone associated with the robbery of the Capitol from holding public office.

The law would authorize the Justice Department to open investigations against candidates and appoint a federal court that would take care of all efforts to prevent the candidacies of accused persons, Cohen explained.

Democratic Representative Debbie Wasserman Schultz of Florida announced in a statement that she is writing a proposal “that would prevent traitors like Donald Trump from ever occupying a government post they sought to overthrow.”

Yet even if Congress does not act, state election officials or even state-level courts could rule that Trump cannot be a candidate in that jurisdiction due to the assault on Capitol Hill, experts agreed.

With or without the involvement of Congress, the matter will inevitably end up in court, said Elizabeth Wydra, president of the Constitutional Accountability Center.

In such a case, the judges would have to answer three questions, Magliocca said.

In the first place, did an insurrection really occur? Trump’s defense attorneys during the impeachment argued that no, but Senate Republican leader Mitch McConnell has called the events of January 6 an insurrection and the word has been used regularly by both Democrats and the US press.

Second, was Trump responsible? Again, the lawyers of the previous president insist that not. In any case, the matter could be clarified through the congressional investigation, the lawsuit filed this week by Democratic Representative Bennie Thompson or through the court case that calls for Trump’s disqualification, Magliocca said.

Third, does Section 3 of the Amendment fall on Trump? The section does not specifically mention the presidency, but Magliocca and several other experts agree that the measure would cover Trump.

In any case, the matter could remain in the hands of the Supreme Court and that would be in the middle of a tense electoral campaign since the issue would arise only if Trump announces a candidacy.

This could upset the president of the highest court, John Roberts, who has made great efforts to exempt the court from all cases related to the false allegations of electoral fraud wielded by Trump and in general, from all cases related to political partisanship.