The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As people search around for some means of taking action against President Donald Trump in light of the events of the past several weeks, and particularly of January 6, some have alighted on a previously obscure part of the Constitution. This is not the way.
The Fourteenth Amendment was adopted by Congress in 1866, and its first section extending new federal protection to the rights of individuals has been the most consequential. Section Three has mostly faded into practical irrelevance. It states:
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.
In short, it disqualifies from office those who have taken an oath to defend the Constitution but subsequently engage in insurrection or given aid and comfort to enemies of the United States.
The reason for wanting to include such a provision in the Constitution in the aftermath of the Civil War is obvious. It largely fell into disuse as time went on. The provision is very oddly structured, however, it that it gives no indication of how it is to be authoritatively determined that someone had engaged in insurrection nor how the disqualification is to be enforced in the case of such individuals.
But this is where things get interesting for President Trump. Can Congress, for example by majority vote on a concurrent resolution, simply declare that Trump has engaged in an insurrection and disqualify him from ever holding the office of president again? That would be a neat trick in that it would avoid the difficulties of winning conviction in a Senate trial by a two-thirds majority.
In the Washington Post, Daniel Hemel walks through why this is a strained interpretation of Section Three and why it would be a bad idea. I recommend checking it out. Myles Lynch has a draft article working through the history of how Section Three has actually been applied.
A Senate impeachment trial may not adhere to the same standards of due process as an ordinary judicial proceeding, but there is a reason why the punishment of disqualification can be applied only after a trial and a conviction before a court with a high hurdle for a guilty verdict. "Insurrection" is not a political offense like "high crimes and misdemeanors." It is a criminal act in violation of the criminal code and capable of being adjudicated in ordinary criminal courts. If Section Three is to be applied, then it should follow a criminal conviction for engaging in an insurrection.
If instead partisan majorities can simply declare that individuals have participated in, encouraged, or given aid to insurrections, then it is not hard to imagine how the scope of "insurrection" could grow, the evidence that an individual had actually engaged in one could be thin to none, and how this power could be turned against political opponents. How many Democratic politicians would a Republican majority in Congress be willing to disqualify from holding future office given their expressed views on various protests turned riots? It would be better not to find out.