With the odds seemingly in favor of former President Donald Trump prevailing in his impeachment trial, a debate is brewing among legal scholars and some members of Congress over whether a once-forgotten provision of the U.S. Constitution can be used to bar the former president from holding federal office ever again.
The provision is part of the Constitution’s 14th Amendment. Ratified in 1868, the amendment is best known for expanding the civil rights of American citizens and guaranteeing “equal protection” under the law. Its lesser known but hotly debated Section Three bars anyone who has “engaged in insurrection or rebellion” against the United States or who has given “aid and comfort” to its enemies from holding office.
Trump faces a single charge of “incitement of insurrection” for his alleged role in instigating his supporters to storm the U.S. Capitol on January 6 to prevent the congressional certification of President Joe Biden’s election victory over Trump.
With 45 Republican senators challenging the legality of trying a former president, the chances that the Senate will convict and disqualify Trump from office remain slim. That will potentially leave Democrats with one untested constitutional tool for disqualifying a former president: the 14th Amendment.
Section Three of the amendment gives Congress the power to enforce its provisions by “appropriate legislation.” This has led some legal scholars to argue that the Democratic-controlled Congress can pass a law by simple majority to bar Trump from holding office in the future.
“Congress can immediately pass a law declaring that any person who has ever sworn to defend the Constitution — from Mr. Trump to others — and who incited, directed, or participated in the January 6 assault ‘engaged in insurrection or rebellion’ and is therefore constitutionally disqualified from holding office in the future,” Deepak Gupta, a constitutional law expert, and Brian Beutler, editor-in-chief of Crooked Media, wrote in an op-ed in the New York Times last month.
Sen. Tim Kaine, a Virginia Democrat and the Democratic vice-presidential candidate in 2016, is among a handful of lawmakers proposing to use the 14th Amendment to prevent Trump from ever seeking federal office again. Kaine contends that Republicans would be more inclined to support invoking the 14th Amendment than convicting Trump of high crimes and misdemeanors.
“What I want to do is offer my colleagues an option to impeachment,” Kaine said at a news conference late last month.
There are some complications, however. For instance, under the 14th Amendment, it is unclear who gets to decide whether a government official has engaged in an insurrectionist activity and merits disqualification. Some scholars argue that it is up to the courts, not Congress, to make the determination.
“Section Three does not identify any mechanisms for determining whether an official has actually engaged in insurrectionist activities that would trigger the disqualification, and as a consequence it has not been used very much and it is not even clear what kind of mechanism would be constitutional,” said Keith Whittington, a Princeton University professor of politics.
What is more, Whittington warned, allowing a simple majority of Congress to impose a lifetime ban on a former president could open a Pandora’s box. Once in control, Republicans could return the favor by voting to disqualify Democrats for expressing views on protests that turned into riots.
“There is a great deal of obvious political risk in having the Congress just make such determinations by majority vote and potentially disqualifying from office members of the minority party with little evidence and through an entirely partisan political process,” Whittington said via email.
Some top Democrats are not persuaded the 14th Amendment is the route to go.
Senate Majority Whip Dick Durbin, Democrat of Illinois, said January 22: “I haven’t been convinced yet, because the 14th Amendment is not explicit on how you determine whether someone participated in an insurrection.”
Were it not for the January 6 Capitol riots, few outside legal circles would know about Section Three of the 14th Amendment. The provision was designed to bar former members of the Confederacy from holding high office, according to Gerard Magliocca, a professor at the Indiana University Robert H. McKinney School of Law.
“After the 14th Amendment was ratified, Section Three was enforced for a period of about four years against various officials who were either in office or people who were elected to office and then were denied the right to take that office because they were seen as ineligible,” Magliocca said in an interview.
Since the end of the post-Civil War period known as Reconstruction, the provision has been used only once, according to Magliocca. In 1919, Victor Berger, a socialist member of Congress from Wisconsin was disqualified and denied his seat after being convicted for his anti-war activities under the Espionage Act, a conviction that was later overturned by the Supreme Court.
“The House of Representatives decided that [Berger’s antiwar stance] constituted giving aid and comfort to Germany and therefore that member was ineligible to serve,” Magliocca said.
Post-January 6 debate
For the next century and a half, the provision largely fell into oblivion. All that changed after January 6 when a mob of Trump supporters breached and vandalized the U.S. Capitol — leaving five people including a police officer dead and prompting the House of Representatives to impeach Trump for “incitement of insurrection.”
In calling for Trump’s disqualification from office, the article of impeachment filed against him references Section Three of the 14th Amendment. However, the House Democratic prosecutors barely mention it in their pre-trial brief submitted to the Senate on Tuesday.
That could mean House Democrats are keeping it as an option that they could use down the road, Magliocca said, adding that members of Congress are working on legislation related to the provision.
If Congressional Democrats decide to invoke the 14th amendment in order to disqualify Trump, they could do two things, according to Magliocca. First, pass legislation establishing an enforcement mechanism for Section Three. This could be similar to the first Ku Klux Klan Act of 1870 that created a process for removing former Confederate officials from public office, Magliocca said.
Second, pass a non-binding resolution finding Trump ineligible to hold office again and urging the courts to accept their verdict.
“The former president would have every right to challenge any determination that he's ineligible in court and pursue all his legal remedies all the way up to the Supreme Court,” Magliocca said.