Donald J. Trump should be disqualified by congressional vote from ever holding any public office for the remainder of his life. And that needs to happen soon, for obvious reasons, if it is to happen at all.
Whatever else it may entail, under prior congressional precedent, it requires a single majority vote by both the Senate and the House of Representatives. In other words, It doesn’t require a supermajority, nor can its implementation be filibustered. It’s an explicit, clear remedy contained within the 14th Amendment of the Constitution. And wholly apart from the question of the wisdom for its use, the justification here is beyond any reasonable dispute. In fact, no one is even trying to dispute it.
And should anyone wish to dispute it, they would certainly have an opportunity to do so.
Section 3 of Amendment 14 to the U.S. Constitution states as follows:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under 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 Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
As Reuters reported in January, prior to Trump’s second impeachment trial for the instigation of the Jan. 6 insurrection:
Under congressional precedent, only a simple majority of both chambers is needed to invoke this penalty. Congress can later remove the disqualification, but only if two-thirds of both houses vote in favor of doing so.
In 1919, Congress used the 14th Amendment to block an elected official, Victor Berger, from assuming his seat in the House because he had actively opposed U.S. intervention in World War I.
The original purpose of the section was to prevent and likely dissuade Confederate officials—the insurrectionists of that era—from holding public office after the Civil War. Because precedent for its usage is sparse (it has been employed only once in the last century) there is substantial dispute as to whether it (a) applies to the office of president (although by its plain, “originalist” language it fairly clearly does), and (b) whether a simple vote by congressional majorities is sufficient, or if additional litigation is required to effect its provisions.
As to the bare fact of its use, those are all reasonable caveats. Others, however, have fewer reservations about its viability in the case of Trump.
Some of those are quoted by Masood Farivar, writing for Voice of America:
“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.”
John Nichols, writing for The Nation, explains that the evidence uncovered and disclosed by the Senate in this month’s extensive report provides more than enough evidence that Trump and his associates “engaged in insurrection” against the Constitution of the United States, in more ways, in fact, than previously could have been imagined. Nichols cites Rep. Jamie Raskin, one of the members of the House select committee investigating the Jan. 6 attacks, for additional context for invoking Section 3 of the 14th Amendment in light of Trump’s treachery.
A 14th amendment strategy is not a radical concept. Indeed, U.S. Rep. Jamie Raskin, the Maryland Democrat who was the lead impeachment manager for the House, has said, with regard to those who are disqualified under the 14th amendment standard, “Donald Trump is right in… the bullseye middle of that group.”
Raskin has argued that there “conceivably could be an affirmative statement by state legislators, by Congress, by other institutions” to make this point.
“So we’d have to figure it out and do some more research about all of that,” added Raskin, a constitutional law professor before his election to Congress. “But the point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office.”
Raskin’s statements were made in light of what was known at the time about the instigation of the Jan. 6 insurrection. But the new evidence detailed in the Senate’s report—compiled after the despicable fiasco of Trump’s second impeachment trial—lives up to its title: Subverting Justice. The report details Trump’s attempts to utilize the Department of Justice to overturn the election through a campaign of lies, pressure, threats, and intimidation. Coupled with the act of planning, instigating, and implementing the Jan. 6 attack on the U.S. Capitol, a comprehensive and frankly irrefutable case has been made to invoke Section 3 of the 14th Amendment in order to effectively bar him from any further public role, and specifically the office of president, as a consequence of his attempts to subvert the Constitution.
Republicans do not have to agree. In fact, I would expect they would not agree. But according to a substantial quantum of legal analyses, they do not have the votes to block Democrats if they unite in invoking Section 3. This brings us to the next, more important question, of whether the 14th Amendment should be invoked.
Of course, Trump would object to the use of the 14th Amendment in his case, drawing upon his already ample treasure of propaganda and well-practiced penchant for violent incitement through media organs loyal to him. He would order his white supremacist thugs and domestic terrorist allies to protest it, doubtlessly encouraging them, through surrogates if not directly, to embrace violence in doing so. In that circumstance the Department of Justice, FBI, Department of Homeland Security and likely various states’ National Guards may need to be deployed. The U.S. military might even need to be deployed as well as a last resort, in accordance with existing law, in order to quell the domestic terror that Trump’s allies would be all but certain to threaten and likely unleash.
And no, this is not a joke. It’s simply what a fair reading of what we will have to do if we want to follow the Constitution. With Donald Trump’s proven proclivities, and his militant and armed base of support, that is exactly how it would play out. That is the unfortunate but very real consequence of having to deal with an autocratic monster like Trump, who this country previously permitted to enjoy power he should never, ever have been granted. If the 14th Amendment has any legitimacy, there is no conceivable reason that it should not be invoked and employed in this case, but we would be foolish to ignore the likely consequences of doing so.
As Nichols states:
Attempting to overturn an election, even if that attempt is unsuccessful, is a coup. Some coups succeed. Some fail. But they all are rooted in an assault on the rule of law that must be addressed by federal and state lawmakers if there is to be any hope of preventing the degeneration of the American experiment into the sort of anti-constitutional impunity that destroys republics.
Before, or possibly concomitant with his recourse to violence, Trump will use every legal means at his disposal to nullify such a vote. As discussed above, the legal precedent for such an action is sparse to non-existent. Many scholars assume, with good reason, that such an invocation would ultimately require the Supreme Court to weigh in on its applicability and legality. And, of course, there is the potential for retaliatory behavior against Democrats by aggrieved Republicans when they next hold congressional majorities.
As Farivar explains:
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.
I would argue that this potential alone argues for Congress to act. As we all know, that Supreme Court now commands a 6-3 conservative majority, half of them appointed by Trump. But if the argument for disqualification is well made, it will provide the American public, at the very least, with an understanding of whether the Court is grounded in the rule of law or if they are, as Justice Amy Coney Barrett so eloquently put it, “a bunch of partisan hacks.” If it is the latter, then Americans should have the right to know that, in order to assess whether the republic can—or should—continue as it is currently formulated.
Litigation of the issue will, if fairly framed, require findings of fact addressing each and every one of the perfidies outlined in the Senate report, and discovered in the process of the investigation by the House select committee investigating the Jan. 6 attacks. While the Supreme Court itself may not determine these facts, if the argument at the outset is appropriately made, a court of appeals or a district court will be required to do so, in copious and explicit detail. Then the Supreme Court, if it chooses to perform its duty, will be bound to evaluate whether those facts are credibly set forth. If it chooses to dismiss Congress’ invocation of the 14th Amendment, then we will know, with certainty, what can and cannot be relied on in any legal context when it comes to challenging the autocracy that Trump and his minions clearly favor foisting on us.
And as Nichols points out, in the context of the amendment’s wording, state officials may also consider themselves bound to make such a determination. They also will have the responsibility to determine whether someone who aided, abetted, and levied an insurrection against the lawful processes of government as set forth in the U.S. Constitution should even be allowed on their state’s ballots. The obvious answer should be “no,” but I would imagine opinions will vary from state to state.
Nichols quotes former National Security Council official Fiona Hill, one of the witnesses at Trump’s first impeachment trial, on what this country will be facing in just three short years. Trump, according to Hill, is already engaged in trying to rewrite the historical record in “real time,” right before our eyes, as the coming months unfold.
He is mulling again a return to what he sees more as a crown than the presidency in 2024.
I feel like we’re at a really critical and very dangerous inflection point in our society, and if Trump — this is not on an ideological basis, this is just purely on an observational basis based on the larger international historical context — if he makes a successful return to the presidency in 2024, democracy’s done. Because it will be on the back of a lie. A fiction. And I think we have to bear that in mind.
Hill is correct that more people do have to “bear that in mind”—including those people who have any expectation of occupying seats in the U.S. Senate and House of Representatives in three years, and including any American who plans on living in this country if Trump is re-elected. What Nichols suggests could in fact tear this country in two, but the question we all have to ask ourselves is whether that is better or worse than the alternative.
Do we have a Constitution, or not? Do we have a republic, or not?
These are all questions that—for better or for worse—are going to be answered in the very near future. It would be far better to have that discussion now, rather than when it’s too late.
This is a Creative Commons article. The original version of this article appeared here.