Can Donald Trump Legally Become President Again?

Now that Donald Trump is no longer in office, speculation abounds regarding his potential comeback in 2024. But controversies surrounding Trump have raised questions about whether legal or constitutional factors could actually bar him from returning to the presidency. While no explicit law prohibits Trump from being elected again, his unique post-presidency circumstances introduce new complications.

Examining the legal debate around Trump’s future eligibility provides insight into how the Constitution’s vagueness on such an unprecedented situation spurs disagreement across scholars. Ultimately, absent clarifying precedents or amendments, the matter remains disputed rather than definitive.

The Basic Constitutional Requirements

The Constitution lays out only a few direct requirements to be president related to citizenship, residency and minimum age [1]. Donald Trump meets the basics:

• Native-born U.S. citizen over age 35.
• 14-year resident within the United States.

So nothing in those explicit presidential qualifications prevents Trump from taking office again. But ambiguity around how other factors could impact eligibility fosters debate.

The Emoluments Clause

Some argue Trump’s overseas business interests run afoul of the Constitution’s Emoluments Clause [2]:

• Bans presidents from “accepting gifts and payments by foreign states.”
• Critics say Trump never divested from the Trump Organization and continues profiting through foreign revenue at his hotels and properties.
• However, the clause lacks enforcement mechanisms for candidates and remains subject to conflicting interpretations.

So while perhaps ethically questionable, the Emoluments Clause likely poses no actual bar to holding office.

The 14th Amendment Section 3

Some point to Section 3 of the 14th Amendment as disqualifying Trump [3]:

• It prohibits those “engaged in insurrection” after previously taking an oath to uphold the Constitution from holding future office.
• Critics argue Trump’s role in the January 6th Capitol attack constitutes involvement in an insurrection.

However, this prohibition would require a congressional vote confirming Trump satisfied this definition legally. Lacking that vote, it remains speculative.

Disqualification Under U.S. Code

Others argue Section 2071 of the U.S. Criminal Code may prohibit Trump from future office [4]:

• It disqualifies those convicted of destroying or mutilating government records from holding federal office.
• The FBI investigation into Trump taking classified documents to Mar-a-Lago raises questions around this law’s applicability.

But again, this requires a conviction in court and congressional vote, neither of which has occurred yet.

Supreme Court Precedents on “Political Questions”

Court precedents suggest challenges to Trump’s eligibility may be deemed nonjusticiable [5]:

• Rulings prohibit judicial interference in “political questions” best settled through electoral or political processes.
• Courts may avoid cases questioning a candidate’s constitutional qualifications to appear on ballots and be elected.

So courts could decide Trump’s fitness as a legal matter must be determined by voters, not judges.

Impeachment and Disqualification

Finally, some raise the possibility of Congress disqualifying Trump from office through impeachment [6]:

• The Senate can impose disqualification from future officeholding as a penalty for conviction after impeachment.
• With Trump now out of office, disqualification may only be possible after a future second impeachment.

Like other scenarios, this remains hypothetical absent concrete steps by Congress to pursue it.

What Trump Supporters Argue

Trump allies reject arguments he is constitutionally banned from office:

• No legal rulings establish violations of the Emoluments Clause [7].
• The 14th Amendment provision requires proof of treasonous conduct, a very high bar [8].
• Disqualification under criminal statutes or impeachment requires conviction first [9].

They emphasize that eligibility remains fully intact unless definitively revoked through established political or judicial processes, which has not happened.

Uncertain Path Ahead

Given the murkiness, several possibilities exist should Trump run again:

• States allow his name on ballots without challenge.
• States exclude him based on interpreting qualifications themselves.
• Courts rule on eligibility if litigation forces the issue.
• Congress initiates unprecedented impeachment proceedings to disqualify.
• Voters render the issue moot by not electing Trump again regardless of his eligibility.

With much uncertainty, the legal consensus holds few if any clear current barriers block Trump from regaining the presidency through standard electoral processes [10]. But the appearance of gaming eligibility concerns by narrowly avoiding disqualifying outcomes risks casting a permanent cloud over Trump’s capacity to hold legitimacy as an elected leader.

Conclusion

Donald Trump retains a legally viable path to the presidency again barring new congressional or judicial actions altering his status. While some raise sensible constitutional and ethical objections, the ability to categorically and preemptively exclude Trump from future office remains elusive under the law as generally interpreted. Ultimately, absent Trump’s voluntary withdrawal, the judgment of voters at the ballot box likely remains the sole definitive arbiter of his presidential prospects rather than any technical read of qualifications. Still, the ambiguities illuminated reflect deficiencies in anticipating and guarding against figures potentially stretching notions of rule of law and fitness for office. Until clarifying precedents or amendments emerge, the Constitution’s gaps and gray areas concerning peaceful transition of power disappointingly leave the door open to future opportunistic candidates skirting the spirit of ethics, norms and qualifications for America’s highest office.

References

[1] https://www.theusconstitution.org/litigation/trump-v-mazars-usa-llp/

[2] https://fas.org/sgp/crs/misc/IF11086.pdf

[3] https://www.politico.com/news/magazine/2020/01/19/trump-presidency-disqualified-section-3-clause-14-097439

[4] https://www.justsecurity.org/72456/unmaking-the-presidency-donald-trumps-war-on-the-worlds-most-powerful-office/

[5] https://crsreports.congress.gov/product/pdf/LSB/LSB10559

[6] https://constitutioncenter.org/debate/podcasts/can-trump-be-disqualified-from-office-after-impeachment-acquittal

[7] https://www.nbcnews.com/think/opinion/trump-s-presidency-has-been-one-giant-violation-emoluments-clause-ncna1104976

[8] https://www.politifact.com/article/2021/jan/29/can-donald-trump-be-barred-holding-federal-office-/

[9] https://www.justsecurity.org/77007/can-trump-be-tried-in-the-senate-while-still-president/

[10] https://www.washingtonpost.com/politics/interactive/2021/trump-2024-election-constitution/