Bruce Ackerman is Sterling professor of law and political science at Yale Law School and author of a multivolume series, We the People, dealing with the dynamics of American constitutional development over the past two centuries. Gerard Magliocca is the Samuel R. Rosen professor at Indiana University’s law school in Indianapolis and the author of a forthcoming article dealing with the amnesty provisions of the 14th Amendment.
House Democrats’ plans to rush through an impeachment of President Trump won’t work, for a simple reason: The Constitution envisions impeachment only as a tool for proceeding against a president while he remains in office. Impeachment is meant to protect the country, not punish the offender. But that needn’t be the end of efforts to prevent Trump from again holding federal office. There is another, little-known constitutional provision that can achieve precisely that without distorting the Constitution’s meaning.
Section 3 of the 14th Amendment, passed in the aftermath of the Civil War, bars Trump from holding another federal office if he is found to have “engaged in insurrection or rebellion against” the Constitution of the United States.
The finding could be accomplished by a simple majority vote of both houses, in contrast to the requirement in impeachment proceedings that the Senate vote to convict by a two-thirds majority. Congress would simply need to declare that Trump engaged in an act of “insurrection or rebellion” by encouraging the attack on the Capitol. Under the 14th Amendment, Trump could run for the White House again only if he were able to persuade a future Congress to, “by a vote of two-thirds of each House, remove such disability.”
Section 3 was enacted to bar any “civil or military” officer who had served the United States before the Civil War from regaining a position of authority if he betrayed his country by supporting the Confederacy. During the height of Reconstruction, a number of former Confederates were, in fact, barred from holding office. It was only in 1872 that Congress once again allowed these men to serve the United States by passing an Amnesty Act with the requisite two-thirds majorities.
House Speaker Nancy Pelosi (D-Calif.) seems to believe that the only way to disqualify Trump from running for a second term is to gain House support for a second impeachment while he is still in office, even though the Senate trial can’t begin until Jan. 20 or 21. Since impeachment is designed to remove officials from office, the constitutionality of such a trial is problematic. But even if it were legitimate, the trial would come with heavy costs to the country and to the incoming Biden administration.
First, the trial could well lead to Trump’s acquittal if most Republican senators decide that a vote to convict would damage their reelection chances by alienating their right-wing base. What message would that send? Second, having the Senate’s time consumed in holding a trial would delay President-elect Joe Biden’s efforts to secure confirmation of his Cabinet and other nominees and divert attention from other initiatives of the new administration. Third, it would further divide the country at precisely the time Biden is seeking to bring America together.
Of course, this being a litigious country, Trump could appeal to the courts to declare that Congress’s determination that he had engaged in an “insurrection or rebellion” was not justified by the facts. But this would be risky, since Trump would be required to testify under oath in response to detailed questioning by the government’s lawyers about his precise conduct during the attack.
Moreover, if the judiciary finally upheld the congressional determination, its judgment would undermine claims by the extreme right that Trump is a victim of a partisan vendetta.
Even more fundamentally, the law is the law. Not only is it in the political interest of the protagonists to heed the express instructions of the 14th Amendment; it is even more important to demonstrate to all Americans that their representatives in Washington take the Constitution seriously.
Now is the time to take a step back, call a halt to the House’s rush toward a last-minute impeachment — and deploy the constitutional means to the important end of making sure Trump is out of office for good.
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