Time to Reconsider the 14th Amendment for Trump’s Role in the Insurrection

As the House impeachment managers consider their approach to the Trump impeachment trial, they should take a lesson from any good baseball ace: you get strike outs by using different pitches. However, so far the Democrats are approaching the Trump Senate trial as a zero-sum ballgame, in which victory depends solely on precluding the ex-president from holding future office by obtaining a supermajority Senate conviction for the high crime of inciting an insurrection.

But let’s be frank: the Senate is not going to convict Trump by the required two-thirds majority no matter how powerful the evidence of his calculated incitement and vicious interference with the election and its congressional confirmation.  Inevitably there will be some 45 or more Republicans who will vote to acquit and thereby declare victory (likely on the “jurisdictional” ground that Congress lacks authority over ex-presidents). And predictably, Trump will falsely but defiantly claim the other “v” – vindication.  Yikes.

In baseball parlance, there is no such thing here as a “moral victory” no matter how much those who vote for Trump’s conviction will say they “scored some runs” in their losing effort by putting Trump’s picture on a twice-impeached presidential trading card.  Now don’t get me wrong, holding Trump accountable, this time for his calculated campaign to incite violence and disrupt our democratic institutions, is an inherently laudable goal. But such a pyrrhic pursuit ignores a better strategy  in this constitutional game: call for a Senate resolution – on a majority vote – that Trump’s misconduct violates the broader terms in section 3 of the 14th Amendment.

The History and Use of Section 3   

Before the January insurrection, only constitutional law professors regularly ruminated about this little-known constitutional provision. The full14th Amendment is more widely known for conferring citizenship and equal protection under the law for all citizens.  However, section 3 provides a lesser-known tool for the House, which could accomplish their dual purposes of holding Trump accountable and precluding him from ever holding office again.

The oft-forgotten section 3 of the 14th Amendment provides in pertinent part:

No person shall [hold any United States or state office] who, having previously taken an oath, . . .as an officer of the United States, . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the (United States), or given aid or comfort to the enemies thereof.

This provision has a weighty history. Its genesis can be traced to the immediate post-Civil War period, aimed at barring supporters of the Confederacy from holding public office for acts in defiance of their prior oaths to the United States. After some initial and vigorous enforcement against former Confederate officials during Reconstruction, by 1872, Congress and President Ulysses S. Grant ceased enforcing  the provision.  In fact, in 1872 Congress passed an Amnesty Act for all but the most senior leaders in the South.

The 1872 amnesty, however, applied only to former Confederates. It did not negate the broad terms of section 3, which could still be applied to anyone in the future who violated his or her oath by engaging in insurrection or rebellion, or giving aid or comfort thereto.  In fact, in 1919, Congress utilized this constitutional provision to bar Victor L. Berger, a socialist from Wisconsin who had taken the oath as a prior member of Congress, from taking office in the House of Representatives following his speeches in opposition to the nation’s entry into World War I.

Impeachment vs. the 14th Amendment     

The rules of the game for the impeachment trial present political and (arguable) constitutional obstacles to the home run result: conviction in the Senate.  For example, an overwhelming number of Republican senators have already committed themselves to the dubious “jurisdictional” evasion that the process cannot be applied to a former office holder.  Moreover, those acquittal-committed senators who do reach the merits have made it clear that they will seize upon supposed First Amendment principles – which preclude criminal liability for speech unless it expressly calls for specific and immediate acts of violence – to excuse the president’s actions from the constitutional, non-criminal remedy of impeachment and conviction.

The base path to victory in the form of a 14th Amendment, section 3 congressional resolution faces no such obstructions for two simple reasons.  First, no matter how dubious the arguments against the constitutionality of convicting a former president in an impeachment trial, there is absolutely no such argument for a jurisdictional barrier to a section 3 bar. The office holding bar in section 3 is expressly intended to be prospective and apply to former officeholders.

Second, the section 3 standard of “engaging” in an insurrection or rebellion and giving “aid or comfort” to those who are enemies of the country are easily satisfied by Trump’s conduct. Former President Trump plainly was “engaged” in (meaning “involved with”) the process leading to the violent invasion of Congress. Furthermore, whatever the challenges of showing that a speech constitutes an actual criminal incitement of violent rioters, Trump’s statements during and immediately after the attack on the Capitol – including telling the rioters “We love you. You’re very special,” and “I know how you feel” – clearly reach the threshold of giving “aid or comfort” to the insurrectionists who stormed the Capitol.

Perhaps most importantly, in the critical quest to hold Trump accountable, a resolution finding that the elements of section 3 have been satisfied requires only a majority vote. This requirement should be  immediately achievable in both houses of Congress, both because Democrats hold these majorities and because the purported constitutional objections to impeachment conviction which have been advanced in the Senate are “swings and whiffs” for a section 3 resolution.

Objections to the Use of Section 3  

Those who resist this use of section 3 have asserted that any preemptive Congressional action would be an unconstitutional bill of attainder (Art. I, sec. 9, cl. 3) prohibiting advanced criminal punishment of an individual by statute rather than judicial trial.  However, such concern ignores the explicit constitutional power of Congress to exercise its separate authority under section 3 of the 14th Amendment, and that those Republicans in the late 1860’s voting for the provision unanimously considered and rejected this precise argument of unconstitutionality.

Congressional resolutions (like censure and “sense of the Senate” votes) do not impose any criminal punishment or liability.  Rather, as described brilliantly by Mark Graber in his recent post “Section Three and (Not) Bills of Attainder,” those who voted for this amendment expressly rejected the bill of attainder objection because congressional legislation under section 3 would simply declare qualifications for office – not find anyone guilty of a criminal offense.  Senators Thaddeus Stevens and Samuel Shellabarger, the persons most responsible for the 14th Amendment’s third section, highlighted that it simply described – as Congress may do by constitutional amendment – who is or is not an eligible officeholder in the future.

For example, Republican then-senators Lot M. Morrill and John Henderson highlighted this distinction between a penalty which is affixed to a crime and the act fixing the qualifications of future public office holders.  As Graber succinctly reports: “Section Three, these Republicans agreed, amended the qualification clauses of Articles I and II. The provision did not amend the treason clause, introduce a new crime, or provide additional criminal penalties for an existing crime” – as a prohibited bill of attainder would do.

Simply put, whether Trump is ineligible for future office because he aided or comforted insurrectionists is a matter for Congress to decide. In contrast, whether he is criminally liable for inciting such an insurrection is for a future criminal court to decide.

Thus, the objective to hold Trump accountable  could be accomplished by section 3 resolutions passed by a majority of either or both chambers – regardless of the outcome of his impeachment trial in the Senate. By concluding that Trump’s actions came within the ambit of that provision’s disqualification elements, Congress would be sending a powerful message to him, the American public and any future judicial officer considering his effort to avoid its consequence.

Conclusion

In the end, the use of a congressional resolution declaring a section 3 disqualification should obtain bipartisan support.  What better final score could there be than that a Civil War amendment’s punishment for those who supported rebellion and slavery should be applied to a former president who aided and comforted insurrectionists carrying a Confederate flag into the nation’s Capitol while spewing the hateful rhetoric of white supremacists?

Clark Giffith, the owner of the now-defunct Washington Senators baseball team, said of his hapless team in the 1950’s: “Our fans like home runs, so we’ve assembled a pitching staff to please our fans.”  Well, so too the current Washington senators: they should pitch the home run of section 3 of the 14th Amendment and thereby preclude Donald Trump from ever holding office again.

Image: A batter tosses his bat after striking out as an umpire makes the call, 13 October 2000, during Game 3 of the American League Championship Series (DAN LEVINE/AFP via Getty Images)

 

About the Author(s)

James Wagstaffe

Attorney and Law Professor from San Francisco; Adjunct Professor teaching Civil Procedure at U.C. California, Hastings College of the Law; his publications include the best-selling Lexis Nexis Practice Guide: Federal Civil Procedure Before Trial. Follow him on Twitter (@JWagstaffeLxNx).