How Congress might prevent Trump from holding office again without impeachment

Thinking outside the box

I hate to give a shoutout to the competition but the “Advisory Opinions” podcast by David French and Sarah Isgur had an interesting discussion on their most recent episode. Actually, I don’t hate to do it, because their podcast is excellent. If you don’t listen to any other podcast, you should listen to David and Sarah. That is especially true if you care about the facts versus feelings when it comes to legal issues.

So, here’s the deal. We all know that impeachment requires a simple majority in the House and a two-thirds majority of senators present to convict and remove an official. The first point that David and Sarah make is that per the Constitution, an impeached official can be disqualified from holding future office by a simple majority vote.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Some have apparently argued that, since the Constitution does not specifically mention a supermajority requirement for disqualifying an impeached person from holding office in the future, that only a simple majority would be required in the Senate to ban Donald Trump from future public office.

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Back in 2019, Edward Foley, professor of Election Law at Ohio State noted in Politico, “The Senate’s practice in impeachment cases has been to hold separate votes on removal and disqualification. The removal vote is the same as the vote on whether to convict on the charges presented by the House’s referral of impeachment. The Constitution’s threshold for conviction and removal is ‘two-thirds of the [Senators] present.’ But disqualification is different. The Senate has long taken the position (not without some controversy) that the vote to disqualify an official from again seeking office requires only a simple majority vote, not the higher two-thirds threshold.”

The podcast lawyers (who, unlike yours truly, are actual lawyers and don’t just play one on the internet) have the opinion that a conviction would first be required to trigger the disqualification vote. So, 67 senators would have to vote to convict the president but then 51 could ban him from running again. The argument is that a conviction would be required to trigger disqualification. If their interpretation is correct, disqualification through the Senate is a long shot with most Republicans still under Trump’s spell.

But there may be another way.

Section 3 of the 14th Amendment 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.

The 14th Amendment was ratified after the War of Secession (also known as the War Against Northern Aggression or the Civil War) and was clearly aimed at former Confederate officials. Nothing limits the amendment to its original purpose, however.

The section has two specific requirements. First, the person must have previously taken a federal oath for specific offices. Second, the person must have engaged in insurrection or rebellion or given aid and comfort to enemies of the Constitution.

The amendment might apply to President Trump, who took an oath to defend the Constitution and then arguably met the second requirement by inciting a riot to overthrow the government as well as giving aid and comfort to the insurrectionists by not acting to put down the riot, not to mention telling the rioters that he loved them.

The amendment might also be applied to some members of Congress, who also have taken an oath to defend the Constitution. Those who objected to the Electoral College would not meet the second test, but Rep. Mo Brooks (R-Ala.) who spoke at the pre-insurrection rally might. Rep. Lauren Boebert (QAnon-Col.), who tweeted Speaker Pelosi’s location as the terrorists were in the Capitol, should also be concerned.

The amendment does not include an enforcement mechanism but the podcast hosts refer to Lyle Denniston, a Supreme Court expert, who points out than an 1870 federal law “treats as a minor crime, punished by as much as a year in jail and a $1,000 fine, for accepting any office after being disqualified under Section 3 for taking part in insurrection or rebellion.”

All of this is more or less hypothetical at this point and would probably end up at the Supreme Court. I’m reasonably sure that Donald Trump’s most enduring legacy will be as a walking, talking constitutional crisis who left a trail of Supreme Court precedents in his wake.