Such anti-democratic conduct should disqualify Trump from ever holding future public office. While conviction by the Senate would have been the best and quickest route to disqualification, because that failed, Congress can — and must — pursue an alternative path to protecting our republic from a future Trump presidency: Section 3 of the 14th Amendment.
Section 3 bars from public office those officials who engage in “insurrection or rebellion” against the United States. Passed in the wake of the Civil War, Section 3 sought to ensure that those who have violated their oaths to defend the Constitution by threatening our democracy cannot hold public office in the future. Importantly, Congress did not limit Section 3 to disqualifying only members of the former Confederacy, but instead deliberately drafted language to encompass any future acts of insurrection or rebellion — such as those of Jan. 6.
There can be no serious dispute that Trump engaged in insurrection within the meaning of Section 3. While Trump did not himself storm the Capitol on Jan. 6, his actions leading up to and during that day’s events were central to the insurrection.
Irrefutable evidence shows that Trump engaged in a long-term campaign to undermine confidence in the election and overturn the results based on unfounded claims of fraud. He pressured and threatened state election officials and the vice president to violate their oaths and the Constitution in order to prevent a peaceful transition of power. When those efforts to overturn the election failed, he incited a violent mob of his supporters to storm the Capitol for the first time since the War of 1812. And as members of Congress hid, fearing for their lives, Trump enthusiastically watched the insurrection on TV and refused to act to stop the violence despite having the authority and power to do so.
These actions amount to a historic attack on our democracy, an astonishing abuse of power and a violation of his oath of office — and they rise to the level of “insurrection or rebellion.”
Because the Senate failed to convict Trump in the impeachment trial, Congress should immediately take action to ensure that Trump is held accountable under Section 3 — an action endorsed by legal scholars. Ideally, Congress would enact legislation that both establishes judicial procedures to enforce Section 3 and expresses Congress’s conclusion — based on factual findings — that Trump engaged in insurrection within the meaning of Section 3. But even a resolution that only does the latter would cast serious doubt on Trump’s eligibility to run for president in 2024.
In addition to not being subject to a two-thirds majority vote, such legislation has numerous advantages. First, it would provide a strong basis for state election officials or political opponents to challenge his candidacy based on Congress’s finding that Section 3 disqualifies him from holding office. This would create a cloud of illegitimacy over a potential Trump candidacy, deterring supporters and donors. Second, while it is most important to prevent any future Trump campaign, any judicial procedures created by Congress could also be used to disqualify others involved in the Jan. 6 insurrection from holding future office.
Finally, and critically, many Senate Republicans, both before and during the impeachment trial, have acknowledged Trump’s grave misconduct. At the same time, many nonetheless voted to acquit on procedural grounds, maintaining that the trial of a former officeholder is unconstitutional. While this perspective is widely disputed even by conservative legal scholars, it need not matter. The Constitution provides senators with a separate tailor-made tool for precisely the conduct for which they have condemned Trump. They should use it.
In 1868, the republic amended the Constitution with a means to protect against the grave threat of insurrectionists and those who give them aid or comfort. In the face of this modern threat to our republic, Congress must revive Section 3 so it can serve its noble purpose of protecting American democracy against those who would do it harm.