Amendment 14, Section 3

An addendum to yesterday's thoughts on impeachment and criminal justice for Donald Trump

In yesterday’s post, using lessons from the political indestructability of Italy’s Silvio Berlusconi as pointers to how Donald Trump needs to be dealt with, I focused on impeachment and conviction as the tools by which the US Congress could potentially exclude him from future office, but probably wouldn’t. The need to get a two-thirds majority in the Senate to convict him, which means 67 out of 100 senators and thus at least 17 from Trump’s own Republican Party, makes the Congressional weapon unlikely to be successfully wielded. I wish it were otherwise, of course, as the best possible outcome would be for Trump to be condemned by a large portion of his own political supporters and previous enablers, as Richard Nixon was eventually over the Watergate cover-up. So far, there is little sign of that happening: the number of Republican Senators to have come out publicly in favour of his removal or conviction is tiny: Lisa Murkowski, Pat Toomey, Mitt Romney. Hence my argument that the more effective course of action is likely to be the use of the criminal justice system, and that it is vital that this course should not be shirked from in some misguided desire for “unity” or wishful thinking that Trump will fade away of his own accord.

However, I now realise that I was unaware of one other mechanism available under the US Constitution, chiefly because it has never been deployed. This excellent article in The Washington Post by Bruce Ackerman of Yale Law School and Gerard Magliocca of Indiana Law School points up another option, one that has been reportedly aired already by Nancy Pelosi, Speaker of the House of Representatives. It consists of the power provided for in section 3 of the 14th Amendment of the Constitution to bar from office anyone who commits insurrection or rebellion against the Constitution having previously taken an oath to uphold it. The text can be seen here but is also copied below:

Fourteenth Amendment 

• Section 3

  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 point that Professors Ackerman and Magliocca make is that to declare a prior office-holder to have engaged in insurrection or rebellion would require only a simple majority vote, while the resulting bar from office could only be removed by a future Congress by a two-thirds vote.

To a layperson like me, this looks like a slam dunk. It can then be followed by the full use of the criminal justice system to pursue Trump and his acolytes. Using it would avoid tying up the early weeks of the Biden administration with a Senate trial. It would allow Mitch McConnell and other Republican leaders to get the Trump issue out of their political way quickly. Some will argue that the intent of the 14th Amendment was to target military figures after the Civil War and to discourage military insurrections and rebellions. That’s as may be, but it is pretty clear that January 6th’s insurrection also had military characteristics. And in any case the rejection by Trump, and his supporters in the Senate including most egregiously Ted Cruz and Josh Hawley, was a rebellion against the US Constitution itself. As Trump himself might say, if you have a power you should use it. And so they should.