A Practical Path to Condemn and Disqualify Donald Trump

Time has come for Congress to contemplate how to hold Donald Trump accountable for his efforts to overthrow the election and incite an insurrection. After all, the last time American citizens made such a concerted, violent effort to overthrow U.S. leaders was in April 1865, when a group of conspirators murdered President Abraham Lincoln and attacked other members of his Cabinet.

As others have noticed, Congress can pursue either impeachment or the invocation of Section 3 of the 14th Amendment. Impeachment has gotten the bulk of public attention, but it’s fitting to take a closer look at Section 3. The 14th Amendment path is true to the facts and preferable procedurally, as compared to impeachment.

The 14th Amendment disqualifies any enemy of the Constitution of the United States from holding state or federal office if that person, as a public official, had previously taken an oath to support the Constitution. Congress has the duty to enforce the 14th Amendment and only Congress, “by vote of two-thirds of each House[,]” has the power to enforce the provision and to remove the disqualification. 

How might Congress go about enforcing Section 3? It can simply decide in any manner it wishes, including a resolution adopted by majority votes, that Donald Trump has “given aid or comfort to the enemies” of the Constitution of the United States. The U.S. Senate, for example, refused to seat Zebulon Vance in 1871 when North Carolina elected him to the Senate because, as a former congressman, he had violated his former oath by serving the Confederacy.

In the extensive discussions of this option, for instance, by Gerard Magliocca and Daniel Hemel here on Lawfare, there are two points that may be missed in those thickets and that require emphasis.

First, the 14th Amendment does not require the Senate to conclude that Trump engaged in an insurrection. The amendment requires only that Congress conclude that Trump gave aid or comfort to enemies of the Constitution. This he did, both on Jan. 6 and in the broader context of the events after the presidential election of 2020.

The House of Representatives has already adopted this conclusion. The article of impeachment adopted by the House found that Trump violated his oath to defend the Constitution “by willfully inciting violence against the Government of the United States.” It also found that this conduct was “consistent with his prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” Thus, the House concluded, “In all of this, President Trump gravely endangered the security of the United States and its institutions of government.”