Congress Needs to Use 14th Amendment Instead of Impeachment to Disqualify Trump from Running Again

One of the first items of business for the new Democratically-controlled Senate will be to try the impeachment of President Donald J. Trump.   But by the time, the Senate begins the trial, Trump will be an ex-President.

The chief goal of impeachment is the removal of the President from office by a 2/3 vote of conviction in the Senate. There is a secondary punishment allowed under the impeachment clause - a disqualification from holding future federal office.  That requires a second vote, and only a simple majority vote, following conviction.

I do not agree that a federal official vacating office means the Senate can't try that official's impeachment.  In fact, it's happened before.  Still the fact Trump is already gone is going to be a powerful argument for Republican Senators to vote against conviction.

Unlike in the House where Trump does have a cadre of enthusiastic supporters, most Republican Senators loathe Donald Trump and want him gone.  But they also live in fear of the Trump's GOP base, so much so getting 17 Republican Senators to vote for conviction, the requisite 2/3 of that august body, will prove challenging, to say the least.  If there was a way of disqualifying Trump from ever being President again, without necessitating a super majority vote in the Senate, that would seem to be the route.

Such an option does exist, the 14th Amendment, Section 3, which originally was aimed to apply to former government officials and members of the U.S. military who had joined the Confederacy.  That section states:

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 President, Trump took an oath to support the Constitution of the United States.  So he appears to be someone who would be covered by the section.  Because of the nature of Trump's offense cited in the impeachment articles - inciting an insurrection - the subject matter of the section likewise would seem to apply.

After the Civil War, Congress, in 1872, passed the Amnesty Act, restoring the ability of most former Confederates to seek office.  In conjunction with the passage of the Act, President Grant issued pardons to all but the top Confederate officials.

It remains unclear who gets to decide whether a person has engaged in insurrection or rebellion against the United States.   Determination of that factual question wasn't a big issue when it came to those who joined the Confederacy.  But now, nearly 152 years later, that is the big issue.  While we know who can lift the qualification (2/3 vote of Congress) who decides whether the standard has been met for disqualification in the first place?   

An article in the ABA Journal discusses the possible use of the 14th Amendment, Section 3, and concludes Congress can take the lead in disqualifying Trump from running for office again: 

Congress could find that Trump engaged in insurrection or rebellion by encouraging the attack against the Capitol. The House of Representatives has already outlined its theory against Trump in an article of impeachment filed Monday.

The impeachment article says Trump encouraged insurrection through false assertions of widespread election fraud and statements in a speech before the Jan. 6 riot. The statements included, “If you don’t fight like hell, you’re not going to have a country anymore.”

A Section 3 vote would need only a simple majority vote of both houses, compared to the two-thirds vote needed for the Senate to convict Trump in an impeachment trial, according to the Washington Post op-ed, which is co-authored by Bruce Ackerman, a professor at Yale Law School.

...

Congress could enforce Section 3 by passing a law declaring that anyone sworn to uphold the Constitution who incited, directed or participated in the Jan. 6 Capitol riot engaged in insurrection or rebellion, according to the New York Times op-ed by lawyer Deepak Gupta and Brian Beutler, editor-in-chief of Crooked Media. The law would say those people are disqualified from office in the future.

Congress could also pass nonbinding sense-of-Congress resolutions that specify which people lawmakers intend to disqualify from office, the New York Times op-ed says. Those resolutions could provide guidance to election officials and judges applying the law after investigations are complete and more facts are known.

Trump could appeal a Section 3 determination by Congress to the courts, where he would have to face detailed questioning in a judicial proceeding, the Washington Post op-ed says.

Even if Congress doesn’t act, it’s likely that someone will ask a court to declare Trump ineligible for office if he runs again for president, according to the Bloomberg Opinion article by Noah Feldman, a professor at Harvard Law School.

The House and Senate should pass resolutions censuring and disqualifying Trump from ever serving in office - federal or state - again.  It would seem to be a mistake to leave this option - which only requires a simple majority and which is certain to pass - on the table.  

I would add that the impeachment disqualification provision only applies to federal office, so Trump could run for Florida governor, for example.  Section 13 has the additional advantage that it disqualifies a person for both federal and state.

OOP's short takes:

• I personally cringe whenever I hear Trumpers complain of "cancel culture."  They are only opposed to cancel culture when it is used against their side. Trumpers have no problem using cancel culture to destroying the careers and reputations of anyone who dares oppose Dear Leader.  Let's not forget all the whisteblowers and members of Congress that Trump and his goons targeted for daring to oppose the President.  And let's not forget forever Trump loyalist Vice President Mike Pence who faced an angry mob of Trumpers who were out to cancel his life because Pence would not follow Trump's demand that he throw out Biden electoral votes, which Pence, of course, had no power to do.  
• I am a huge proponent of free speech, but something needs to be done about media outlets and social media that continues to spout misinformation and lies.  The riot at the Capitol makes clear that there is a segment of people who will become radicalized when constantly fed lies that seek to reinforce their biases. 
• Over 100 pardons and commutations are coming tomorrow, Trump's final day in office.  I am still betting Trump pardons himself. What does he have to lose in issuing such a pardon?  Certainly most of Trump's family will receive pardons.  While I certainly don't agree that acceptance of a pardon is an admission of guilt, as some have argued, I have little doubt that the Trump children have an actual need for federal pardons.  The problem is they have a bigger need for state pardons because their bigger problem is with prosecutors in New York.
• Numerous Trump supporters who stormed the Capitol on January 6th, were caught on video saying they believed they were acting at the request of President Trump.  Since their arrest, the rioters have said the same thing.  Since most of the charges against them are federal, Trump could issue a blanket pardon to the rioters and they could walk free.  But Donald Trump won't do that because such a pardon does not help Donald Trump.  Those Trump supporters are about to learn an important lesson.  At the end of the day, Trump cares only about himself and what is in his best interests.  The rioters were being used by Trump. They were Trump's Chumps.