Donald Trump was accused of “inciting insurrection” after a crowd of his supporters invaded the United States Capitol, making him the first president in history to face two charges. Now, some lawmakers want to take it a step further and ensure that he can never run again.
But a conviction in the Senate, where a two-thirds majority is needed to plead Trump guilty and potentially disqualify him from office, is likely to be an uphill battle, even under Joe Biden.
This is where a little-known 14th Amendment provision comes into play. Ratified in 1868, the amendment is known primarily for providing citizenship and equal protection under the law to anyone born or naturalized in the United States. This included blacks previously enslaved and free.
But Section 3 of the amendment also provides a path to disqualification, stating that no person should be in office if he has participated in an “insurrection or rebellion” against the United States. When Congress invoked Section 3 in the past, it did so by a simple majority or 51 votes.
And while it has never been used against a president, some Democrats are considering it after the attack on the U.S. Capitol on January 6, when a crowd of Trump supporters clashed with the federal police and stormed the building. The riot, which intended to interrupt Congressional certification of President-elect Joe Biden’s electoral college victory, resulted in five deaths.
In a letter to House Democrats on January 10, spokeswoman Nancy Pelosi (D-Calif.) Said her views were “valued” in Section 3 of the 14th Amendment, as well as in impeachment and the 25th Amendment. Freshman representative Cori Bush tweeted that she would present a resolution to expel members of Congress who opposed the Electoral College, declaring that they “violated the 14th Amendment.”
The only problem is that the Constitution does not provide any guidance on how Section 3 of the 14th Amendment should be invoked.
“It’s not automatic,” said Laurence Tribe, professor of constitutional law at Harvard Newsweek. “It only applies to people who were guilty of being involved in an insurrection or rebellion. And someone still needs to determine who those people were, if the president himself was guilty of being involved in the insurrection.”
Tribe said it would be unconstitutional for Congress to simply plead Trump guilty, without a conviction, as some people have argued. But lawmakers could circumvent the trial requirement by creating new legislation under Section 5 of the 14th Amendment to provide a procedure for applying Section 3. The new legislation would need to be approved by both chambers and signed by the president.
“It was a horrible thing,” said Tribe of the January 6 attack. “I am sure that Congress will want to consider legislation after the impeachment trial to create a fair process to enforce Section 3 against all people who were involved in this insurrection.”
Michael Gerhardt, professor of law at the University of North Carolina, also said Newsweek that the House and Senate would likely enforce the directive on how to use Section 3 when a new legislative session begins and members have a seat.
Other scholars, Gerhardt noted in an e-mailed statement, “further believe that Section 3 may also require a court or congressional decision that the person deemed ineligible has in fact participated in the prohibited misconduct; and some argue that the Section 3 implicitly allows each chamber of Congress to issue its judgment by majority vote in the chamber to which the member who violated the section belongs. “
But the process could take years, as Daniel Hemel of the University of Chicago noted in an editorial to The Washington Post. He also argued that “a law banning Trump from future posts that is passed by a simple majority in the House and Senate would raise serious constitutional issues.” The best way, said Hemel, would be for Congress to establish a judicial procedure to disqualify the rebels.
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Representative Alexandria Ocasio-Cortez (DN.Y.) told ABC News that Congress should explore all possible avenues to respond to the Capitol riot and hold political leaders accountable.
“This is not the 25th Amendment or impeachment or, you know, investigating our other avenues through the 14th Amendment,” she told anchor George Stephanopoulos. “I do not believe that this is a matter of deciding or debating which of these paths we should pursue. I believe that we should take an all-out-of-the-above approach.”
Pelosi also doubled his commitment to hold members of Congress and the president accountable for whatever role they may have played in the January 6 attack during a news conference on Friday.
“If it is indeed found that members of Congress were complicit in this insurrection, if they helped and incited the crime, it may be necessary to take action beyond Congress in terms of prosecution,” she told reporters.
An impeachment trial in the Senate is unlikely to begin until Trump leaves office on January 20. Senate majority leader, Mitch McConnell (R-Ky.), Who will soon become the minority leader in the upper house when the two Democratic senators from Georgia take office in, issued a statement saying that Congress should pass the immediate future ” completely focused on facilitating a safe inauguration and an orderly transition of power. “