Two U.S. senators, a Democrat and a Republican, are working to attract support for a vote to censor former President Donald Trump, now that it looks like the Senate is unlikely to condemn him over the House’s impeachment article.
Although the majority of the Senate voted this week to proceed with the trial, the 55-45 vote was well below the two-thirds it would have taken to convict. That took Sens. Tim Kaine, D-Va., And Susan Collins, R-Maine, proposing a vote to censor the former president as an alternative punishment.
Kaine said the adoption of the censorship resolution may prevent Trump from taking a future position, but lawyers are not so sure.
A censorship by one or both houses of Congress has no legal force if the person censored is not a member of Congress. The Constitution explicitly grants Congress authority to punish its own members, except for the power of impeachment. A vote to censor someone in the executive or legislative branch, therefore, would express only the non-mandatory “meaning” of Congress.
The notion that censorship could prevent Trump from holding a future federal office is based on how Kaine and his supporters are reading Section 3 of the 14th Amendment, which says: “No one should be a senator or representative in Congress, or a voter for the president and Vice President, or hold any office, civil or military, in the United States, or in any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the United States Constitution, will have been involved in an insurrection or rebellion against it. “
Strange as it may seem, said Professor Steve Vladeck of the University of Texas Law School in Austin, there is an ongoing legal question about whether the president is, in fact, “an officer of the United States.” This phrase appears frequently in the law, but the courts still need to define the meaning when it comes to the person at the top of the executive branch.
Assuming the sentence applies to the president, if the Senate passes a censorship resolution stating that Trump was involved in an insurrection, it could trigger a state to block him from the ballots if he decides to run in 2024. Trump could then sue, and the courts would have to decide the issue.
Alternatively, Trump could be admitted to the ballot in a state, and an opponent could sue to expel him, which would also take the issue to court.
Vladeck suggests that, because there are so many unknowns, the most prudent course would be for both houses of Congress to pass a censorship resolution, to give it extra weight.
Unlike a vote to condemn Trump in an impeachment trial, a vote to censor him would require only a simple majority, which is another reason why some senators may be more likely to succeed. But for now, Senate majority leader Chuck Schumer is focused on the article on the impeachment of the House.
“There will be a trial,” said the New York Democrat, “and the evidence against the former president will be presented in bright colors for the nation and each of us to see again.”
Julie Tsirkin contributed.