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As the race for the US Presidential election hots up, the million dollar question that everyone is asking is this: Can Donald J. Trump even contest the 2024 polls?

The legal debate has been thrown wide open with two prominent legal scholars making the case that the former President would in fact be disqualified from contesting as per the US Constitution because he tried to overturn the results of the last election. He is facing charges for the same.

In an article in ‘The Atlantic’, liberal law professor Laurence Tribe and former federal judge, J. Michael Luttig, who is a well known conservative, have argued that the 14th amendment bars Trump from even being on the ballot.

The post Civil War amendment excludes from future office anyone who, previously, as a sworn-in public official, “engaged in insurrection or rebellion … or [had] given aid or comfort to the enemies” of the government.

In the article, the two experts have written that “the former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the US. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”

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Eligibility enigma 

Professor Tribe has said it is up to officials in each state, called the Secretaries of State, to now determine whether Trump’s name should be put on the ballot. Whatever happens, the issue is likely to end up in the US Supreme Court as a decision either way would be legally challenged.

Professor Tribe and Justice Luttig are not the only ones making this argument. Only days earlier, two members of a conservative legal group called the Federalist Society also published an article making the same argument.

Writing for the University of Pennsylvania Law Review, Law Professors William Baude and Michael Stokes Paulsen have said that “on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the Jan. 6 attack. The case for disqualification is strong.”

The two scholars have cited Trump’s speech on Jan. 6, 2021 to his supporters where he said the election was stolen, calling on the crowd to take immediate action to block the transfer of power, before falling silent for hours as the insurrection progressed.

Legal limbo

They write that “Trump’s deliberate inaction renders his Jan. 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s reaction was all a big mistake or misunderstanding”.

These pressing legal questions come at a time when Trump has been indicted four times on various criminal charges including plotting to overturn his 2020 election defeat to Joe Biden, during an inquiry into events surrounding the 6 January 2021 riot at the US Capitol. Trump has been accused of spreading lies about election fraud for over two months in what experts are describing as the most serious case he currently faces.

But with each indictment, Trump’s popularity has actually soared among his own Republican base according to various polls that have been done over the last few months. At the same time, polls show that overall most Americans would not vote for Trump if the election were held today.

This is a contradiction but it shows that despite most Americans viewing Trump unfavourably, most Republican voters still like him.

Trump’s core base genuinely believes he has been wronged and is the target of a political witch hunt. The fact that the other Republican candidates have not really been able to make a mark with Republican voters has also helped Trump.

The 2024 Presidential election looks like it may become a very messy one, with the courts ultimately deciding how things will go. This is uncharted territory in America and whatever happens will have a bearing on the future of its democracy.