After a pro-Trump mob raided and vandalized the Capitol, Democrats seeking to hold President Donald Trump and his Republican lackeys accountable have been plumbing the depths of available laws and procedure.
They’ve unearthed Section Three of the 14th Amendment, a relic of the Civil War that suddenly feels very relevant.
It essentially seeks to keep those who have engaged in “insurrection or rebellion” against the United States from holding office on both the federal and state level. Back when it was written, it was, of course, referring to the rebels of the Confederacy.
“This was adopted in wake of the Civil War when President Johnson was trying to reinstate Southern state officials by pardoning them,” Wayne McCormack, professor of constitutional law at the University of Utah, told TPM.
Now, Democrats have included a reference to part of the law that has lain dusty and dormant for a century and a half in their drafted articles of impeachment, which the House plans to vote on this week. If the Senate convicts Trump and removes him from office, the articles read, Trump should be barred from ever holding office again.
“Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has ‘engaged in insurrection or rebellion against’ the United States from ‘hold[ing] any office … under the United States,” they read.
Some Democrats, including Rep. Alexandria Ocasio-Cortez (D-NY), have also suggested using Section Three against the Republican lawmakers whose constant attacks on the November election, they argue, led to last week’s violence.
“I just introduced H.Res. 25,” tweeted freshman Rep. Cori Bush (D-MO) Monday. “It would, under Section 3 of the 14th Amendment, investigate and expel the GOP members of Congress who attempted to overturn the election and incited a white supremacist attack.”
There is considerable murkiness with using such an old, untested law, especially against the President. For members of Congress, the machinery is clearer: according to constitutional law expert Gerald Magliocca at the Indiana University Robert H. McKinney School of Law, it takes a two-thirds majority in Congress to expel the member, like it takes a two-thirds majority to remove the bar from holding office again. On presidents, the text is silent.
Magliocca who published the text of a forthcoming paper called “Amnesty and Section Three of the Fourteenth Amendment” last month, thinks Section Three is the best way to punish Trump.
“I do think that Section Three is better than impeachment, the 25th Amendment, or doing nothing,” he told TPM.
He advocates for Congress to pass a joint resolution asserting that Trump is in violation of Section Three and can no longer hold office. That, he argues, would bog down the machinery of Congress less than impeachment proceedings, and would lay the groundwork for a future court challenge if Trump tries to run for office again.
It would likely then fall into the lap of the courts to determine if the law applies to Trump.
“It is unclear from Section Three of the 14th Amendment as to who would determine whether someone engaged in insurrection,” Erwin Chemerinsky, dean of the UC Berkeley School of Law, told TPM. “In the rare instances it has been used, Congress made the determination as to a member of Congress. But who would decide this as to Trump and using what procedures?”
On the congressional side, the enforcement mechanism may be clearer, and have more historical precedent. But the argument that Republican members engaged in insurrection directly is harder to make.
Trump gave a speech just before the mob moved to the Capitol, egging them into a collective fury.
“We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and -women, and we’re probably not going to be cheering so much for some of them,” he said, moments before adding that “we’re going to have to fight much harder.”
He also did little to quell the violence as it unfolded, urging his followers afterwards to “remember this day forever!”
While many of his Republican allies faithfully amplified his lies about the November election and supported every procedural step possible to challenge its certification, fanning the flames that led to violence, few of them have such a clear individual link to triggering the insurrection itself.
With the possible exception of Rep. Mo Brooks (R-AL), who also spoke just before the insurrection, Magliocca told TPM that he does not see Section Three as the best means by which to punish the members of Congress many of their Democratic counterparts see as culpable.
“At most maybe some members should be reprimanded,” he said.
Even if Democratic members disagree, they’d have a difficult time enforcing the law in either chamber. Democrats are well short of a two-thirds majority in both the House and the Senate, even if they waited for Sens.-Elect Jon Ossoff (D-GA) and Raphael Warnock (D-GA) to be seated. The likelihood of getting so many Republicans on board to expel a member of their own party seems nonexistent.
But perhaps equally unlikely, until last week, was a world in which a law meant to keep Confederates out of the newly stitched-back-together United States government was considered an option to keep Trump and his loyal few out of office ever again.
“Section Three was a relic until the other day,” Magliocca said. “People like Mitt Romney and Senator McConnell were the ones who first described what occurred as an insurrection. Maybe they didn’t realize that this is loaded language because it’s in the Constitution, but now we’re there.”
Correction: The original post incorrectly contextualized a line from Section Three. While, according to Professor Magliocca at the Indiana University Robert H. McKinney School of Law, it takes a two-thirds vote to expel a member of Congress, the text of the Section only addresses the vote needed to remove the bar from office.