The Washington PostDemocracy Dies in Darkness

Opinion There is a better option to keep Trump out of office than prosecution

Former president Donald Trump is displayed on a screen as the House Jan. 6 select committee holds its fourth public hearing on Capitol Hill on June 21. (Jabin Botsford/The Washington Post)

If the goal of prosecuting former president Donald Trump is to protect American democracy from a Trump comeback in 2024, there is a better way to go about it than filing criminal charges. Instead, Congress should exercise its constitutional authority to prohibit Trump from seeking the presidency again.

Section 3 of the 14th Amendment sets out the procedure. It provides that “no person” shall hold federal office who, “having previously taken an oath” as a federal officer “to support the Constitution of the United States,” has “engaged in insurrection or rebellion against the same.”

This was written in the immediate aftermath of the Civil War and with that conflict top of mind. But the scope of this disqualification is not limited to that one rebellion. Instead, it extends to any “insurrection” against the constitutional government of the United States.

The issue of using the 14th Amendment to disqualify Trump from seeking future public office arose in the aftermath of the Jan. 6 insurrection. But the evidence amassed by the House select committee and put on display in its hearings underscore how apt it would be to employ that provision in Trump’s case — and how much more straightforward that approach would be than taking the dramatic step of filing criminal charges against the former president.

Here’s how it would work: Congress would pass a law, exercising its authority under the 14th Amendment, that would authorize the Justice Department to file a civil suit to prohibit Trump from seeking the presidency. Congress can make clear as part of its new statute that it deems the Jan. 6 assault on the constitutional procedure for counting the electoral vote to amount to an “insurrection” for purposes of the 14th Amendment’s disqualification clause.

Of course, Congress could have achieved the same goal by convicting Trump in the second impeachment trial — the one charging him with incitement of the insurrection — and this would have resulted in disqualifying Trump from holding federal office again.

But enough GOP senators, including Senate Minority Leader Mitch McConnell (Ky.), took the view that impeachment was improper because Trump already had left office by the time the Senate trial started. That argument wouldn’t apply here, so Congress has the chance for a do-over — if it’s willing to take it.

Of course, that’s a big if, given that 10 Republican senators would have to agree to overcome a filibuster. But seven Republicans voted to convict Trump in the second impeachment proceeding. It is not impossible to imagine that three more would be willing to vote in favor of this statute. After all, they don’t have to make the declaration that Trump is unfit for office; they need only allow the Justice Department to pursue disqualification in court.

As a technical matter, Congress can’t specifically label Trump as a disqualified insurrectionist in such a statute. That would risk judicial invalidation for violating a separate constitutional provision, the “bill of attainder” clause, which prohibits Congress, as the legislative branch of government, from determining a specific individual’s liability under the law.

But without naming Trump specifically, the statute can instruct the Justice Department to file civil disqualification proceedings against any participant in the Jan. 6 insurrection, and the statute can further define for purposes of these civil adjudications that participants include anyone who orchestrated or advanced the insurrection without personally taking up arms at the Capitol.

Confederate president Jefferson Davis, after all, came within the scope of Section 3 as a participant in the Civil War “rebellion” even though he was not a soldier for the South. A well-crafted statute would be straightforward to allow the Justice Department to apply it to Trump in light of the compelling evidence of his efforts to prevent the peaceful transfer of power.

This approach would serve the purpose of protecting democracy better than a criminal prosecution of Trump. For one thing, procedures for civil litigation of disqualification — which Congress would be entitled to enact given its power to enforce the 14th Amendment by “appropriate legislation” of its choice — would avoid all the extra burdens of a criminal trial, including proof beyond a reasonable doubt.

Moreover, safeguarding the 2024 election from the kind of subversion that Trump attempted in 2020 does not require putting him in prison for his past criminality. Instead, what is necessary is to disable him from being a candidate again.

The purpose of the 14th Amendment’s disqualification clause is to prevent insurrectionists from getting a second chance to subvert the Constitution. If there is insufficient patriotism to implement this remedy, given “the clear and present danger” that former federal judge J. Michael Luttig described in his testimony before the committee, then the Republic truly is in trouble.