Having witnessed the unflinching partisanship of Senate Republicans, the American people have two avenues left to hold the disgraced former president accountable for inciting insurrection.
The benefit of a criminal trial is that witnesses can be subpoenaed (e.g., former vice president Mike Pence). House Minority Leader Kevin McCarthy (R-Calif.) under penalty of perjury could be required to recall his conversation pleading for help. The venue of the trial, Washington, might be favorable to the prosecution. Lawyers who behaved as defense counsel did in the impeachment would be held in contempt. The jury will not be “fixed” in advance.
Beyond a criminal prosecution (and an investigation in Georgia is already underway into Trump’s alleged effort to intimidate the Georgia secretary of state), there is another means of holding him accountable. Democrats could bring a bill or a concurrent resolution (which cannot be filibustered) to affirm that, according to the 14th Amendment, Section 3, the former president is ineligible to hold office. That provision states that someone who engaged in “insurrection” or had “given aid or comfort” to those who did cannot hold federal office. That Civil War provision prohibited Confederate officials and military officers from serving in the Union unless granted a reprieve by a two-thirds vote.
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McConnell has already confirmed on the floor that the former president was responsible for a violent insurrection. While there is scant precedent, it is almost certainly true that the presidency from which he would be disqualified is covered by “any office, civil or military, under the United States, or under any State” in Section 3. (It would be bizarre if one could be excluded from running for the House but not the presidency.)
Congress could go even further and, as one lawyer exploring this avenue told me, “expressly authorize the Attorney General to bring an action to enforce Section Three against President Trump before the D.C. Circuit Court of Appeals (or a three-judge federal district court panel) and allow for immediate and expedited appeal to the U.S. Supreme Court.”
Now, strictly speaking such a vote would not be required if down the road the former president chose to run for office. If Trump ran in the future, his opponents could seek to disqualify him. Nevertheless, putting Congress on record would give weight to such a claim in the future and, as noted, could give the Justice Department a cause of action to enforce Section 3. Congress could make findings of fact, affirm his conduct falls within Section 3 and affirm he is disqualified from holding office.
A concurrent resolution would not be subject to filibuster, so the 57 senators who voted to convict Democrats would have to decide the legal and political value of such a move. (Slick operatives might delight in allowing the Republicans to nominate him in 2024, only to have him be disqualified.) If they proceed, the same timorous Republicans who voted to acquit him would likely oppose it. Doubling down on their pattern of elevating partisan survival over the country would make (further) mockery of the constitutional argument they used to avoid conviction.
It is far from clear, however, that this is the best track. When asked about censure at a Saturday news conference, House Speaker Nancy Pelosi (D-Calif.) said, “Censure is a slap in the face of the Constitution that gives — lets everybody off the hook. It lets everybody off the hook. Oh, these cowardly senators who couldn’t face up to what the president did and what was at stake for our country are now going to have a chance to give a slap on the wrist?” She added, “We censure people for using stationery for the wrong purpose. We don’t censure people for inciting insurrection that kills people in the Capitol.” She may well consider a concurrent resolution no more than a slap since it lacks the force of law.
For now, prosecutors in multiple jurisdictions (New York, Georgia, D.C.) must decide if they have facts to pursue criminal conviction. It may be that running for office in 2024 is the least of Trump’s concerns.
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