The Fourteenth Amendment to the United States Constitution was adopted on July 9th, 1868, as one of the Reconstruction Amendments. Section 3 says, 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.
Democrats are looking at the 14th Amendment to Prevent Trump from ever holding Public Office again. The Discussions are in the early stages. and Top Members of the Senate Caucus aren’t yet convinced it’s a viable Remedy, but Senators are exploring their Options after Trump’s Supporters Stormed the Capitol.
“It’s an idea that’s out there that I think people are contemplating in the accountability space,” said Sen. Tim Kaine (D-VA), who described himself as “quite confident” that Congress could act under the Constitutional Amendment. “I just want us to choose a path that maximizes focus on the Biden-Harris agenda,” Kaine added.
Sen. Richard Blumenthal (D-CT), who caveated that talk of the 14th Amendment was hypothetical, said it could be applied to Trump, with one mechanism being a Resolution from Congress. “The remedies of the 14th Amendment certainly may be appropriate for someone who incites an insurrection as Donald Trump did,” said Blumenthal, a Member of the Senate Judiciary Committee.
Sen. Chris Murphy (D-CT), cautioned that it was early, but called using the 14th Amendment “certainly a possibility.” “All of these are questions of first impression, in terms of constitutionality,” he added. “I certainly think there is a 14th Amendment avenue separate and aside from impeachment.”
Senate Majority Leader, Charles Schumer (D-NY) has already pledged to hold a Vote on Blocking Trump from holding Future Office if the Senate Votes to Convict him as part of the Impeachment Trial for “willfully inciting violence against the Government of the United States.” Though Conviction requires Two-Thirds support, barring him from Office in a subsequent Vote would take only a Simple Majority. “After what he has done, the consequences of which we were all witness to, Donald Trump should not be eligible to run for office ever again,” Schumer said on the Senate Floor earlier this week.
To Convict Trump in an Impeachment Trial, Democrats would need their Entire Caucus plus 17 Republican Senators, a high bar that they could fail to reach. Though several GOP Senators and McConnell have blamed Trump for provoking the Mob that stormed the Capitol, it is to early to determine which Senate Republicans has Committed to Voting to Convict.
Kaine noted that the 14th Amendment could be pursued after a Trial if Senators weren't able to Convict Trump. He added that while there were “extensive discussions” going on about Pursuing the 14th Amendment, the Decision was ultimately up to Leadership.
But there's Skepticism from some High-Ranking Democrats that the 14th Amendment could be used to Block Trump from holding Future Office.
Sen. Dick Durbin (D-IL), Schumer’s No. 2, noted that he had a “long conversation” with Kaine but wasn’t yet sold on the idea that it could be pursued without Trump being Convicted First. “I haven’t been convinced yet because the 14th Amendment is not explicit on how you determine whether someone participated in an insurrection. ... There is a real serious question if that conviction has not taken place, whether the Congress can have a finding, or the Senate can have a finding, that they’re guilty of insurrection and whether that’s sufficient. So it’s unresolved,” Durbin said.
Section 5 of the 14th Amendment stipulates that Congress has enforcement power “by appropriate legislation.” But using the 14th Amendment to Remove a President would put Congress in murky waters, both Legally and Politically.
The University of Virginia’s Philip Zelikow recently wrote in Lawfare that “Congress can apply the 14th Amendment disqualification to Trump, by majority vote.”
But University of Chicago Law School’s Daniel Hemel countered that barring Trump with only a Simple Majority Vote “would raise serious constitutional questions.” “Trump’s defenders would no doubt argue that the law violates the bill of attainder clause, and unlike many of Trump’s legal arguments, this one would be far from frivolous,” he added. Instead, Hemel said, a better way would be for Congress to set up a judicial proceeding that would determine if someone was disqualified under Section 3 of the Amendment.
Sen. Ben Cardin (D-MD) said he wanted more Information, but questioned whether Congress needed to Act in order for Trump to be Blocked from Future Office.
Kaine, meanwhile, floated the idea that invoking the 14th Amendment against Trump could take several paths, but One option would be Passing a Resolution, which he believes would take 60 Votes in the Senate, requiring the Support of at least 10 Republicans. “It would be a 60 vote threshold,” he said. “And it wouldn’t require a trial. It would be a debate on a resolution … so take less time, easier threshold. If you can’t get to 60, you won’t get to 67.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
