OPINION: This article contains commentary which may reflect the author's opinion
The Democratic Party, constitutional scholars, and pro-democracy advocates have quietly explored the possibility of disqualifying former President Trump from holding office again in the years since the Jan. 6 attack on the Capitol.
After the riots of Jan. 6, there was a crescendo of calls to take steps to strip Trump of his eligibility, but since then they have abated. Participants in the 14th Amendment discussion say that discussions have continued about applying Section 3 of the Amendment.
“If anything, the idea has waxed and waned,” said Harvard Law School professor Laurence Tribe. “I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”
In a new report, Democratic lawmakers found that around a dozen of them have discussed in public or privately how Section 3 of the 14th Amendment might apply to those who took part in the violence on Jan. 6.
Rep. Jamie Raskin (D-Md. ), who is on the Jan. 6 House Select Committee; Rep. Jerry Nadler (D-N.Y.), chair of the House Judiciary Committee; and Rep. Debbie Wasserman Schultz (D-Fla.) are among the offices that have spoken with Tribe recently.
“I continue to explore all legal paths to ensure that the people who tried to subvert our democracy are not in charge of it,” Wasserman Schultz told a reporter.
Raskin and Nadler declined to comment.
Those officeholders who had engaged in insurrection or revolt against the government are disqualified from future office under the 14th Amendment, ratified after the Civil War.
During the impeachment trial, Raskin served as the House manager during which Trump was accused of being responsible for the Jan. 6 attack. In a press interview after Trump’s Senate acquittal, Raskin talked about the constitutional provision, saying Trump is “right in the bullseye middle of that group.”
“The point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office,” he said to ABC News, expressing concern about the legal mechanics requiring “more research.”
According to the report, most constitutional scholars say the provision is not “self-executing.” Thus, to make the 14th Amendment effective for Trump, Congress would have to take an additional step.
Several scholars believe that Congress, upon a simple majority in both chambers, could find that Trump was engaging in insurrection on its own, thereby implicating the constitution. Allowing Trump back into office would then require a supermajority vote under the 14th Amendment.
In the view of other experts, such as Jeffrey Tribe of Harvard, Congress needs to go further, either by creating a fact-finding body neutral to the Trump administration or by assigning the fact-finding role to a federal court.
After Trump’s Senate impeachment trial last February, Rep. Steve Cohen (D-Tenn.) introduced a bill permitting the attorney general to claim that an officeholder violated the provision and should be barred from holding future office before a three-judge panel.
Besides legislative discussions, other efforts have been focused on pressure on state election officials so that they can be sued privately.
An anti-Trump group, Free Speech For People, has mounted a pressure campaign to have the 14th Amendment applied to Trump if he runs again. Then Trump’s name would effectively be omitted from the ballot in their state in 2024.
They wrote to chief election officials in all 50 states and Washington, D.C., urging them to prohibit Trump from appearing on the ballots of future elections. As a result, the group says that Congress doesn’t have to take any additional steps since the 14th Amendment is already in effect.
“Just as states are permitted (if not required) to exclude from the presidential ballot a candidate who is not a natural-born citizen, who is underage, or who has previously been elected twice as president, so too states should exclude from the ballot a candidate, such as Mr. Trump, who previously swore to support the Constitution, but then engaged in insurrection,” the group’s letter to Georgia Secretary of State Brad Raffensperger states.
What if the election officials fail to comply?
“We intend to litigate this question,” the group’s president, John Bonifaz, said according to the report. “So if a secretary of state does not follow the mandate of Section 3, the 14th Amendment, we will bring this matter in court.”
However, some scholars believe such lawsuits would likely face serious hurdles and would likely be challenged in the Supreme Court.
“If a Secretary of State declines to find Trump ineligible, it is far from clear who could challenge that determination,” explained law professor Gerard Magliocca of Indiana University. States differ in their laws regarding ineligibility.
The outcome of any lawsuit over Trump’s eligibility in 2024 would likely depend on whether a congressional fact-finder had already determined that Trump’s role in the Jan. 6 attack triggered Section 3 of the 14th Amendment. In the absence of that, a lawsuit brought by Trump to challenge his exclusion from the ballot would be more likely to succeed.
What the Jan. 6 House panel ultimately reveals about Trump’s role may impact the possibility of pushing for his disqualification under the 14th Amendment.
“Once that committee makes clear, as I trust it will, that what took place was indeed an insurrection that triggers Section 3 of the 14th Amendment and that supports criminal prosecution by DOJ of those responsible, it is difficult to imagine this not becoming a logical next step,” Tribe said.
Of course, if Democrats successfully ban Trump from holding federal office again, it remains to be seen how half of the country would react. An actual insurrection could take place, not the fake one that Satanic Democrats equate to as being on the same level as the September 11, 2001 attacks.