- Since the siege of the United States Capitol, some lawmakers have said that Trump should be prevented from taking office.
- The 14th Amendment may be the last option that lawmakers have to achieve this goal.
- However, lawyers disagree on how, if at all, the bill could be applied in Trump’s case.
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Following the siege of the Capitol, some US lawmakers have asked that President Donald Trump, and some of his colleagues in Congress, be removed from office or prevented from taking office again in the future – and they can invoke the 14th Amendment to do so.
The 14th Amendment was adopted in 1868 and is known primarily for granting citizenship rights and equal protection under the law to anyone born or naturalized in the United States, including blacks and ex-slaves.
The amendment overturned the 1857 Supreme Court decision, Dred Scott v. Sandford, who maintained that people of African descent could not be American citizens.
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However, a section of the amendment prevents someone who, having sworn an oath to the constitution, “engaged in an insurrection or rebellion” against the United States from taking office.
Originally designed to prevent Confederates from serving in public office, it could now prevent Trump from running again
The intention at the time was to influence the Southern government, preventing the Confederates from serving in public positions after the Civil War. “The idea was that public office holders in the United States would not be traitors to the United States,” Doron Kalir, a professor at the Cleveland-Marshall School of Law, told Insider.
Here is the full text of Section 3 of the 14th Amendment:
“No person shall be a senator or representative in Congress, or a voter of 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, must have been involved in an insurrection or rebellion against it, or give help or comfort to your enemies. But Congress can, by the vote of two thirds of each House, remove this deficiency. “
There are differing opinions among legal experts as to whether the amendment could actually be used in Trump’s case and, if it were used, how exactly it would work.
How could this be used against Trump
An uncertainty is whether or not the text can be applied to the presidential office. Although he lists senators, deputies and voters as positions in which a person could be prevented, the presidency is not named explicitly.
“I’m not sure if this applies to the president of the United States,” Kalir told Insider, adding that it is unlikely that the authors would nominate these positions, but not the presidency itself if they intended it to apply.
Most likely, he said, the section is intended to apply to senators and positions below that.
There is also uncertainty about exactly what would be the process for invoking the amendment to remove someone from office.
“It is not clear who should make the decision that the person was involved in an insurrection or rebellion against the United States,” said Kalir.
Some jurists think that Congress itself can make that decision and that they can bar someone from office just by passing a law with a simple majority in both chambers. In this scenario, the process would be relatively simple, as Democrats currently have a majority in the Senate and the House.
But Kalir said the logic directly contradicts another section of the constitution that effectively prevents Congress from acting as a court.
Therefore, some scholars do not think that Congress alone can use the 14th Amendment to prohibit someone, like Trump, from taking office. Instead, the process would likely require litigation beyond the law.
Federal prosecutors are investigating Trump’s role in inciting Capitol insurrection, which could, in theory, lead to him being sentenced in court.
Such a conviction could give Congress the necessary authority to then pass a law preventing Trump from office on the premise that he “was involved in an insurrection or rebellion”, as the 14th Amendment states.
The amendment was invoked once in more than a century to bar someone from office
There is some historical precedent, since the amendment was used to bar someone from office, but only once in more than a century.
In 1919, Congress used the 14th Amendment to bar Victor Berger, a Wisconsin socialist and an elected official, from entering the House because he was actively opposed to the US entering the First World War.
In that case, a special committee met and concluded that Berger was unfit for the position. He was then barred by a simple majority in the Senate and the House. Because of this, some believe that the precedent in Congress shows that only a simple majority is needed.
But the Congress that prohibits anyone from joining its own body is strikingly different, Kalir said.
“To think that the United States Congress could prevent someone from becoming President of the United States without being impeached is big – it’s a big legal leap.”
Berger’s case was also 102 years ago and there has been no use of this section since.
Kalir says that if he were invoked today, he could be challenged in court and, in the end, it would take years to execute.