With the failure of Senate Republicans to convict Former President Trump, some have proposed using Section 3 of the 14th Amendment to accomplish the objective of disqualifying him from future public office through a simple majority vote of Congress. While this idea is completely untested, Constitutional text creates a strong case that this is Constitutionally viable. Section 3 of the 14th Amendment reads:
“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.”
The history of this was obviously to bar Confederate soldiers and politicians from public office after the Civil War. It disqualified so many Southern men that it was largely responsible for the phenomenon of “carpetbaggers” from the North coming down to run for office.
While originally intended for Confederates and the Civil War, on its face it is not so restricted and on its face it applies to any person who participates in any insurrection or gives aid and comfort to it. The framers of the 14th Amendment could have limited its provisions to participants in the Civil War, but they quite clearly chose not to do so.
Section 3 does not say how or who decides if someone “engaged in insurrection or rebellion against the same, or given aid or comfort” to those who did. Presumably back then everyone just knew. It says that Congress can remove such existing disability by a 2/3s vote, but that’s not the question. The question is whether Congress can create the disability by a simple majority vote. Section 3 does not say, but what about the rest of the 14th Amendment?
Section 5 of the 14th Amendment reads:
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The three civil war amendments were the first to include this now common enforcement clause. The argument is that Section 5 grants Congress the power to enforce all the provisions of the 14th Amendment, to include Section 3. Thus Congress can either pass a law stating how the Section 3 disability is imposed, or simply pass a law stating that it is imposed on Donald Trump.
I suggest the law could read something like this:
Section 1: Whereas Congress has determined that the assault on its halls on January 6, 2021, aimed at stopping the Congress of the Unites States in its Constitutional obligation to count the electoral college votes of the 2020 Presidential election, was an insurrection as described in the 14th Amendment, Section 3 of the United States Constitution.
Section 2: Whereas Congress has determined that the insurrectionist mob was motivated by the then President of the United States, Donald J. Trump, through months of false statements attacking the credibility of the Presidential election.
Section 3: Whereas Congress has determined that the then President of the United States, Donald J. Trump, through acts and words, summoned the insurrectionist mob on the specific day of the counting of the electoral college votes with the foreseeability that the insurrectionist mob would attempt through violence to interfere with the counting of the electoral college votes.
Section 4: Whereas Congress has determined that then President of the United States, Donald J. Trump, and his agents, through acts and words, spoke to the insurrectionist mob on January 6, 2021 in a manner that foreseeably had the effect of prompting many within the insurrectionist mob to believe that they would be doing as the President of the United desired if they marched on the Capitol building, and with violence, sought to interfere with the counting of the electoral college vote.
Section 5: Whereas the insurrectionist mob breached the walls of this Capitol, ransacking, looting, causing members of Congress and the Senate to flee for their lives, while violently assaulting police, leading to grievous injuries to many officers defending the Capitol.
Section 6: Whereas the insurrectionist mob sought to hunt down and assassinate members of Congress and the then Vice President United States.
Section 7: Whereas even as the insurrectionist mob sought to hunt down and assassinate the Vice President of the United States, the then President of the United States, Donald J. Trump, tweeted encouragement to do so, communicating to the mob that his Vice President was a coward for not illegally, unilaterally throwing out electoral college votes to retain then President Donald J. Trump in power. His doing so gave aid and comfort to the insurrectionist mob.
Section 8: Whereas despite pleas from members of Congress to the former President for him to summon law enforcement and security to the Capitol, Donald J. Trump was derelict in his Constitutional duties to faithfully uphold the laws of this nation and willfully failed to do so. This dereliction gave aid and comfort to the insurrectionist mob.
Section 9: Whereas as the events of the insurrectionist mob attack on the Capitol unfolded then President Donald J. Trump gave aid and comfort to the insurrectionist mob through tweets endorsing their cause. At no time on January 6, 2021 did Donald J. Trump condemn the violence or those committing violence. At 6:01 p.m. on that day he repeatedly tweeted sympathy towards those who did it, suggested that Congress deserved what happened, and urged the insurrectionist mob to “remember this day forever.” These words gave aid and comfort to the insurrectionist mob.
Section 10: Whereas Congress takes note that Section 5 of the 14th Amendment expressly grants Congress the power to enforce the provisions of that Amendment, to include Section 3 of it, with appropriate legislation.
Section 11: Therefore, Congress determines that Donald J. Trump engaged in, and/or gave aid and comfort to an insurrection against the United States as described in the 14th Amendment, Section 3 of the United States Constitution.
Section 12: Therefore, pursuant to the provisions of the 14th Amendment, Section 3 of the United States Constitution, the former President of the United States, Donald J. Trump, is ineligible to serve as 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 or as a member of any State legislature, or as an executive or judicial officer of any State.
I urge Congress get to work on this right away.
