Image caption: Crowd at the Donald Trump MAGA rally in Toledo, OH. tokyo studio/AdobeStock.com

Former US President Donald Trump is leading in public opinion polls for the Republican nomination for president in 2024. Despite his criminal indictments, there’s nothing preventing Trump from running – at least not legally. But a growing number of US constitutional scholars and voter groups are arguing that the 14th Amendment to the US Constitution prohibits Trump from holding US office again.

The 14th Amendment was adopted in 1868 after the US Civil War. Section three of the amendment provides that ‘No person shall […] hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath […] to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same’.

As president, Trump was impeached twice by the US House of Representatives, but never convicted by the Senate. He’s been held responsible for defamation in a case involving a decades-old alleged sexual assault, a decision he intends to appeal, while he faces criminal charges in an alleged hush money scheme involving a former adult film star – a scheme that he denies any knowledge of.

None of this legally prevents Trump from running for president again. In years past, any one of these scandals would have derailed a US politician’s prospects – but Trump’s career has shattered such norms. What has people talking about disqualifying Trump from the 2024 presidential ballot is his conduct around the 6 January 2021 riot by his supporters at the US Capitol.

On 6 January, thousands of Trump supporters attended a rally near the White House where Trump claimed in a fiery speech that the 2020 election had been stolen and urged the crowd to march on the Capitol, where Congress was convening to ratify Joe Biden’s win.

Thousands of Trump’s supporters overwhelmed police barricades and swarmed through the Capitol, forcing elected officials into hiding. Five people died – including one police officer – as a result and dozens of police officers were injured, many seriously.

Trump was subsequently impeached by the House for ‘incitement of insurrection’. Had the Senate convicted Trump on the insurrection charge, it could have also chosen to bar him from holding future office. Senate Republicans refused to go so far against the leader of their party and Trump was acquitted. Meanwhile, Trump has argued that on the day of the Capitol attack, he was urging supporters to behave peacefully.

In 2022, Kim Wehle, a constitutional law scholar at the University of Baltimore, wrote in an opinion piece that Congress has the authority to pass legislation enforcing the 14th Amendment’s ban on insurrectionists. ‘Congress […] enacts rules to keep serious constitutional offenders […] from populating and exercising the privileges of the highest office of the land’, Wehle wrote.

The flaw in Wehle’s theory is that the Republicans presently control the House and nearly half of the Senate, making it highly unlikely Congress would act to block Trump from office.

The 14th Amendment theory gained new credence in August however when legal scholars William Baude of the University of Chicago Law School and Michael Paulsen of the School of Law at the University of St Thomas wrote in an academic paper that the 14th Amendment’s section three is ‘self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress’.

Baude and Paulsen sought to dispel what they viewed as misperceptions and mistaken assumptions about the legal operation of section three. ‘Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort”. It covers a broad range of former offices, including the Presidency’, Baude and Paulsen wrote. ‘In particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.’

Key points of Baude and Paulson’s argument were that section three of the 14th Amendment remains enforceable and was not limited to the Civil War; that it doesn’t require Congress to act; and that it can be enforced by state officials and the courts. And as an amendment to the Constitution, it supersedes other potential legal conflicts, such as ex post facto laws.

Former federal Judge J Michael Luttig and Harvard Law professor Laurence Tribe made a similar case in a joint opinion piece, also published in August. ‘The Fourteenth Amendment […] contains within it a protection against the dissolution of the republic by a treasonous president’, they wrote.

Today, Trump faces a raft of serious federal and state criminal charges stemming from the attack on the US Capitol by his supporters and his alleged attempt to use fake electors to overturn the 2020 presidential election, charges he denies. Luttig and Tribe concluded that whether Trump is convicted in those cases is beside the point. ‘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’, they wrote.

The most pressing question facing the US, Luttig and Tribe posit, isn’t whether Trump is disqualified but whether the country will ‘abide by this clear command of the Fourteenth Amendment’s disqualification clause’.

Not everyone agrees. Michael B Mukasey, of counsel at law firm Debevoise & Plimpton and a former US Attorney General, argues the president is not an ‘officer’ of the US within the framework of the Constitution. Wolfe tends to agree, for a host of reasons. ‘The idea that the 14th amendment is self-executing and would prohibit the measurement of 40 per cent of the voters in the country is astonishing’, Wolfe says. ‘From a technical, US constitutional, due process standpoint, it doesn’t feel right to me.’

‘It doesn’t make sense, no matter what you think of Trump personally, that a political candidate from any country in the world who has 40 per cent of the popular vote would be unilaterally, without due process prohibited from running because of a hyper technical reading of a 150-year-old document’, he adds.

State officials in key swing states Georgia, Michigan and New Hampshire have already said Trump will be on the ballot in 2024 unless a court orders otherwise. ‘We’re not the eligibility police’, Michigan Secretary of State Jocelyn Benson told a national TV news outlet.

Courts are being asked to weigh the issue. The advocacy group Citizens for Responsibility & Ethics in Washington and a group of six individual voters filed suit in a Colorado state court seeking to prevent Trump from being on the ballot. The Minnesota Supreme Court will hear oral arguments in November on a similar challenge.

Over the summer, the Northern Hemisphere faced fire, floods and heatwaves. Yet some governments are pulling back from green policy commitments or facing pressure to do so.

In late September, the UK government scrapped or delayed its green plans, including pushing back a ban on the sale of petrol and diesel cars to 2035, while affirming its commitment to ‘net zero by 2050’. It says it’s ‘reducing costs on British families while still meeting international commitments’. However, Chris Stark, Chief Executive of the UK’s Climate Change Committee, an independent, statutory body, said that ‘the government needs to look again at the policies. We need to do more’ and that the policy changes are not about doing more, but less.

In July meanwhile, UK Prime Minister Rishi Sunak announced he would approve over 100 new licences this autumn to drill for oil and gas in the North Sea. The government argues the UK will still need oil and gas to provide 25 per cent of its energy even by 2050.

Environmental protest groups such as Just Stop Oil are placing increasing pressure on governments to take significant action to address the climate crisis. There’s a question however as to whose job it should be to hold governments to account to ensure they meet the pledges they’ve made.

Caroline May, Head of Sustainability, Europe, Middle East and Asia at Norton Rose Fulbright in London, says the landscape of environmental protest and lobbying is changing. ‘When I was a young lawyer, environmental protest groups were seen as radical, but over the course of my career a number of NGOs [non-governmental organisations] are now seen as mainstream and indeed authoritative voices in this space. So today’s activists may be tomorrow’s authoritative voices’, she adds.

As the debate has shifted, new players have entered the world of environmental campaigning. In 2008, environmental lawyers’ group ClientEarth launched its first legal action against new coal power plants in the UK. Since then, the organisation has filed hundreds of cases against governments and corporates to challenge claims and policies relating to the environment, recording significant victories.

For example, a complaint filed with the UN in 2008, which argued that the EU was failing to comply with its duties to give the public access to the courts to bring cases under the Aarhus Convention, eventually resulted in a change to the bloc’s legislation, allowing much wider challenges to EU environmental policies. ‘Climate litigation is a powerful lever to trigger system-level change. It isn’t always a silver bullet, but legal cases are important for reminding corporations and governments of their obligations. The impacts of the climate crisis are happening now and getting unignorably worse. As such, people are turning to the courts to seek justice’, says a spokesperson from ClientEarth.

The organisation adds that the legal toolbox is growing, with more climate-linked human rights cases being filed as well as an increasing amount of litigation related to climate-related financial risk. ‘Every positive precedent opens the door to a proliferation of cases fought on similar arguments, with game-changing climate victories recently won in German, Dutch and French courts, and each judgment highlights how governments and corporations that are dragging their feet on climate action can no longer do so without consequences’, adds the spokesperson.

Litigation is also being used elsewhere in a bid to force governments to keep their promises. In Brazil, the largely independent public prosecutor’s office is able to sue the government and has used that power to bring environmental cases. In 2022 the Brazilian Supreme Court found that the government had failed to ensure Brazil’s Amazon Fund – set up to protect the rainforest – was functional and that it must be revived. Crucially, the Court also ruled that environmental law treaties are more important than regular laws in the legal hierarchy.

‘Litigation is a path and we’re seeing right now it’s growing in Brazil’, says Antonio Augusto Rebello Reis, Climate Change Officer on the IBA Environment, Health and Safety Law Committee and a partner at Mattos Filho in Rio de Janeiro. ‘The Supreme Court in Brazil has been demonstrating it will put forward strict decisions on compliance with climate goals.’

But not everyone has the expertise, patience or funding to bring litigation, or the guts to sue a government. That’s why lawyers believe there are other ways to encourage authorities to uphold their climate pledges. Florencia Heredia, Chair of the IBA Energy, Environment, Natural Resources and Infrastructure Law Section and a partner at Allende & Brea in Buenos Aires, says that investors are putting pressure on companies to meet corporate pledges, which in turn forces governments to regulate appropriately.

‘Corporates are already shaping the agenda and are in many cases hugely ahead’, adds May. ‘The big driver for corporates now is a lot of the financial frameworks that are coming out around climate change and energy transition and sustainability, providing access to capital but also requiring environmental improvements and performance.’

Particularly for developing nations, where growing the economy is the government’s priority, ensuring that companies are investing and thriving is a key driver. The climate agenda in places such as Latin America is very different from that of Europe or the US. However, Rebello says corporate pressure can still be applied to make change happen. ‘It may be possible that if the government plays it right Brazil plays a very important role in the next years in decarbonising industries in general’, he says. ‘We need investment to grow towards this, and if national and international investors push for green products in Brazil I don’t see the government having a way around it.’

This is where the legal community can play its part. ‘The role of law is to shape the framework in which all of these policies need to be delivered, and it’s a very important tool,’ May explains. ‘Lawyers are very important advocates for the legal frameworks that have been put in place and for assisting clients with implementation and best practice. As such, environmental and energy lawyers have a vital role to play in delivering the necessary transitions to net zero and sustainable solutions.’

‘We as lawyers have a role which is extremely relevant in the energy transition area because we advise clients, we work with companies and we interact with governments and regulators’, adds Heredia. ‘We need to be the voice of what’s done right.’

Law societies and bar associations globally are taking action to help legal practitioners understand their role moving forward. For example, the Law Society of England and Wales’ Guidance for Solicitors on Climate Change, published in April, assists organisations with managing their business in a manner that’s consistent with the transition to net zero. It also provides guidance for solicitors on how the physical risks of the climate crisis and climate legal risks may be relevant to client advice, and how solicitors’ professional duties interplay with issuing legal advice in the context of the climate crisis.

*Thank you to Lara Douvartzidis, a member of the IBA’s Legal Policy & Research Unit, for her assistance with this article.

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