Two of the primary penalties being considered for our insurrectionist soon-to-be former president must be initiated by Congress (impeachment) or by Trump’s vice-president and Cabinet (removal via the 25th Amendment). But there’s another scenario that would not require action from any of these parties: Trump may already be barred from running for or holding future office under the terms of Section Three of the 14th Amendment, which reads:
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.
This clause of the 14th Amendment (passed in June of 1866 and ratified in July of 1868) was intended to bar ex-Confederate military officers and civilian officials from holding political office at a time when then-soon-to-be-impeached President Andrew Johnson was handing out pardons to former rebels like candy. The section goes on to provide that this “disability” can be waived via a two-thirds vote in both houses of Congress.
That happened for most ex-Confederates via the Amnesty Act of 1872, and for all but a few of the highest-ranking rebels in later amnesty legislation in 1875. Confederate military leader Robert E. Lee finally had his citizenship fully restored posthumously in 1975, and Congress followed suit for Confederate president Jefferson Davis, a highly unrepentant arch-insurrectionist, as a reconciliation gesture signed and supported by then-President Jimmy Carter of Georgia. As it happens, Joe Biden voted for both these acts of restoration.
Now this history is relevant to Trump because he, too, gave “aid and comfort” to those engaging in “insurrection or rebellion” against the Constitution of the United States. In the impeachment article the U.S. House is like to pass this week Trump’s action is called “incitement to insurrection.” So it’s entirely possible to argue that the 45th president is barred from a political comeback even if impeachment fails or the 25th Amendment is not invoked.
Punchbowl refers to this fallback option as “Plan D” for Democrats in dealing with Trump’s definitive misconduct. “There’s some discussion in legal circles that it could be used against Trump, but it’s a longshot.”
It’s a longshot in part because it could only be tested in the event Trump runs for federal or state office at some point in the future, and no one knows for sure if the courts would uphold a 21st-century application of a provision clearly designed for use against those who engaged in what was for many years referred to simply as “the Rebellion.” And the legal ambiguity of this interpretation of Section Three makes it a less than satisfactory source of vindication of the widespread anger at Trump over his effort to subvert an election he lost.
There is, however, something satisfying about branding Trump with the same “traitor” label born by those Confederates he has so resolutely defended as an honorable part of “our history.” I’ve argued that Trump’s whole approach to race relations makes him a “neo-Confederate,” and the same could be true of his approach to voting rights and elections. Just as those seceding from the United States in 1861 could not accept the election of Abraham Lincoln, Trump cannot accept Joe Biden’s 2020 victory, preferring to incite violence against Congress for the sin of confirming it. If Republicans manage to block a ban on a future Trump run for office via the impeachment process, opponents of insurrection should definitely prepare to wield the 14th Amendment to keep this latter-day Jefferson Davis from returning to power in the government he betrayed.