The inglorious, deadly siege of the U.S. Capitol last week has left Congress, once again, no choice but to impeach Donald Trump as punishment for his role in instigating the lawless throngs that brought to a halt the certification of Joe Biden as the next president of the United States. With Trump in office, even for less than two weeks, “any day can be a horror show for America,” House Speaker Nancy Pelosi said last week. The unlikely wild card of forcing Vice-President Mike Pence to trigger the 25th Amendment, which might neutralize a president “unable” to discharge his duties, seems all but destined to fail.
But there’s another constitutional option, sitting right at the heart of the Reconstruction amendments, that offers Congress a potent, and less fraught, political weapon to punish the president for unleashing the violent mob that disrupted a solemn step in the peaceful transfer of power.
The 14th Amendment, which ensured citizenship and equality for Black people in the aftermath of the Civil War, also empowers Congress to banish from public life anyone who has taken an oath to defend the Constitution yet has been found to “have engaged in insurrection or rebellion against the same.” By joint resolution in both houses of Congress, lawmakers could invoke Section 3 of the amendment and expeditiously prohibit Trump from holding office ever again, effectively preventing him from running for president in 2024, as he has considered doing. By its plain terms, Section 3 would bar Trump from holding “any office … under the United States.”
Such a resolution likely wouldn’t remove Trump from office now. Yet realistically, neither would impeachment, as a Senate trial may be put off until after the inauguration — or maybe even after Biden’s first 100 days in office, as House Majority Whip James Clyburn indicated might happen. Biden, for his part, doesn’t want his own agenda derailed, however the newly Democratic-controlled Senate decides to proceed. A declaration of Trump’s ineligibility by both houses of Congress under Section 3, however, can move fast — and would send a powerful signal to the American public, and the rest of the world, that the violence and death that descended on the Capitol were an affront to the nation.
There hasn’t been an indication that a joint resolution under Section 3 is forthcoming. But Democrats in the House of Representatives, who remain committed to impeachment, are certainly thinking about this little-used provision of the Constitution. In the single article of impeachment they introduced on Monday, titled “INCITEMENT OF INSURRECTION,” they cite the express language of Section 3 of the 14th Amendment as a basis for holding Trump accountable for the violence. “In all this, President Trump gravely endangered the security of the United States and its institutions of Government,” the article, introduced by Representative David Cicilline, declares. “He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.”
When I broached the import of Section 3 with a preeminent historian of Reconstruction, Columbia University professor Eric Foner, he didn’t equivocate. “Section 3 is very applicable — certainly to Trump himself — and would only require a majority vote in Congress, not two-thirds,” he told me in an email. “It would be quicker and simpler than impeachment.” Gerard Magliocca, a law professor at Indiana University who wrote a seminal paper on the history and application of Section 3 of the 14th Amendment, has also urged Congress to consider a Section 3 disqualification from office for Trump.
Already there’s a growing consensus that the armed takeover of Congress that Trump helped set in motion rose to the level of insurrection against the United States. “What happened here today was an insurrection incited by the president of the United States,” Mitt Romney said last Wednesday after he and his colleagues resumed their joint session. (He was the lone Republican to join Democrats in last year’s Senate trial to remove Trump from office.) Condemning the unruly rioters, whom he accused of trying to “disrupt our democracy,” outgoing Senate Majority Leader Mitch McConnell called their actions a “failed insurrection.” Biden, putting at Trump’s feet the events of the day, said the mayhem in Congress was nothing like a protest. “It’s insurrection,” he said. Two days later, Pelosi joined this chorus in a statement honoring Brian Sicknick, a Capitol Police officer who died from injuries he suffered in the riots. “The violent and deadly act of insurrection targeting the Capitol, our temple of American Democracy, and its workers was a profound tragedy and stain on our nation’s history,” she said. News organizations are likewise characterizing what happened at the Capitol as an insurrection orchestrated by the president of the United States.
All of these signals can help move public, if not judicial, sentiment. As Magliocca explains in his scholarly exploration of Section 3, there’s not a lot of case law grappling with the scope of this section, and the Supreme Court has never truly dealt with its meaning and application. Thus, it is entirely plausible that Trump may choose to litigate the issue and contest his ineligibility, breaking new constitutional ground. If things got to that point, the fact of a joint resolution by Congress sealing Trump’s disqualification would strengthen the hand of, say, a state Republican Party wishing to keep him off a primary ballot. Or that of the Justice Department, which may choose to jump into a future legal dispute and attest to the ineligibility of the former president.
There’s precedent for this kind of litigation. As Magliocca recounts in his article, the Enforcement Act of 1870, also known as the First Ku Klux Klan Act, empowered the Justice Department to bring actions against a number of officials who, “contrary to the provisions” of Section 3, unlawfully held office. By dint of that authority, federal prosecutors in the South sought, in the words of the act, “removal” of members of the Tennessee Supreme Court and the state’s attorney general, among other Confederate-aligned officials. Presumably, an ousted president Trump bent on running again, against the wishes of Congress and the spirit of the Constitution, would face a similar kind of action in federal court, and he would have to explain to a judge why a Section 3 disqualification doesn’t apply to him. Would the courts or the Supreme Court dare question a congressional judgment in response to one of the darkest days in recent American history?
None of this is to say that invoking Section 3 is a panacea or is without risk to the body politic. The section’s post-ratification history, like much of Reconstruction and later judicial interpretations of the Civil War amendments, is shameful, as Congress didn’t waste much time in neutering its effect by granting amnesty, both individual and blanket, to people barred from public office on account of their loyalties to the Confederacy.
In an unattributed historical vignette recounting the Amnesty Act of 1972, which restored the officeholding rights of many former Confederates, the Alabama-based Equal Justice Initiative published a sharp critique of what could be fairly described as Congress’s failure to uphold the promise of Section 3 if not the 14th Amendment itself. “When Reconstruction ended in 1877 and federal troops left the region, these people who had so recently fought to maintain white supremacy and retain slavery were well-positioned to seize control of their state governments and orchestrate laws and policies to suppress the new civil rights of Black people,” reads an entry in the organization’s A History of Racial Injustice, which documents the many instances of racial horrors in our nation’s past. (Another shameful postscript came later in the 1970s, when Congress posthumously restored the Section 3 disabilities imposed on Robert E. Lee and Jefferson Davis.)
There’s an ugly racial subtext to last week’s attack on Congress: the kid-gloves treatment the white rioters received vis-à-vis Black Lives Matter protesters last summer, the anguish of the Black officers who tried to fend them off, T-shirts emblazoned with the words “Civil War,” the sight of a Confederate flag flying unimpeded in the halls of power. These and other indignities that marked January 6 would be fair game to consider in a congressional debate and lend further credence to a serious invocation of Section 3 of the 14th Amendment — separate and apart from any determination that Trump’s incitement of lawlessness amounted to insurrection against a coordinate branch of government. If there were ever a moment to invoke the centerpiece of the Reconstruction amendments, that moment is now.