Revisiting The 14th Amendment

After his attempted coup and violent insurrection, the House did its duty and quickly impeached Trump (for a second time). David Cicilline’s resolution concluded that “Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to ‘find’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so. In all this, President Trump gravely endangered the security of the United States and its institutions of Government. 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. Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

There were 217 co-sponsors and it passed 222-197— 10 Republicans voting with every Democrat to impeach (and 4 Republicans ducking the vote). These are the 10 who voted to impeach— along with their immediate fates:

• Liz Cheney (WY)- defeated in primary

• Jaime Herrera Beutler (WA)- defeated in primary

• Peter Meijer (MI)- defeated in primary

• Tom Rice (SC)- defeated in primary

• Anthony Gonzalez (OH)- retired before being defeated

• John Katko (NY)- retired before being defeated

• Adam Kinzinger (IL)- retired before being defeated

• Fred Upton (MI)- retired before being defeated

• Dan Newhouse (WA)- won primary/general

• David Valadao (CA)- won primary/general

The 4 very far right Republicans who ducked the vote are Kay Granger (TX) and 3 with sudden medical emergencies: Daniel Webster (FL), Greg Murphy (NC) and Andy Harris (MD). Murphy and Harris could have even supplied their own doctors' notes if Pelosi insisted.

In any case, the House impeached Trump and Senate Republicans, acting completely irresponsibly refused to find him guilty. In need of 67 votes, 57 senators voted to find him guilty and 43 voted against it. The only Republicans man enough to vote to find him guilty were Richard Burr (NC), Bill Cassidy (LA), Susan Collins (ME), Lisa Murkowski (AK), Mitt Romney (UT), Ben Sasse (NE), Pat Toomey (PA). Burr, Sasse and Toomey have all retired. Cassidy, Collins and Romney have yet to face the voters and Murkowski beat back a Trump led campaign to replace her with his handpicked MAGA crackpot, Kelly Tshibaka, 53.7% to 46.3%, with the help of Democratic voters in the second round of a ranked choice election.

Yesterday, NY Times editor Jesse Wegman wrote that “Had the Senate convicted him as it should have, he could have been disqualified from holding public office again. But nearly all Senate Republicans came to his defense, leaving him free to run another day.” And that brought on a discussion of the possibility of using the 14th Amendment to prevent Trump from running again. “On it’s face,” he wrote, “this seems like an eminently sensible rule to put in a nation’s governing document. That’s how Representative David Cicilline of Rhode Island, who has drafted a resolution in Congress enabling the use of Section 3 against Trump, framed it. ‘This is America. We basically allow anyone to be president,’ Cicilline told me. ‘We set limited disqualifications. One is, you can’t incite an insurrection against the United States. You shouldn’t get to lead a government that you tried to destroy.’”

This is also the reasoning of the 14th Amendment’s framers, who intended it to serve as an aggressive response to the existential threat to the Republic posed by the losing side of the Civil War. Section 3 was Congress’s way of ensuring that unrepentant former Confederate officials— “enemies to the Union”— were not allowed to hold federal or state office again. As Representative John Bingham, one of the amendment’s lead drafters, put it in 1866, rebel leaders “surely have no right to complain if this is all the punishment the American people shall see fit to impose upon them.”

…In September, for the first time in more than a century, a New Mexico judge invoked Section 3, to remove from office a county commissioner, Couy Griffin, who had been convicted of entering the Capitol grounds as part of the Jan. 6 mob. This raised hopes among those looking for a way to bulletproof the White House against Trump that Section 3 might be the answer.

I count myself among this crowd. As Jan. 6 showed the world, Trump poses a unique and profound threat to the Republic: He is an authoritarian who disregards the Constitution and the rule of law and who delights in abusing his power to harm his perceived opponents and benefit himself, his family and his friends. For that reason, I am open to using any constitutional means of preventing him from even attempting to return to the White House.

At the same time, I’m torn about this specific tool. Section 3 is extraordinarily strong medicine. Like an impeachment followed by conviction, it denies the voters their free choice of those who seek to represent them. That’s not the way democracy is designed to work.

And yet it is true, as certain conservatives never tire of reminding us, that democracy in the United States is not absolute. There are multiple checks built into our system that interfere with the expression of direct majority rule: the Senate, the Supreme Court and the Electoral College, for example. The 14th Amendment’s disqualification clause is another example— in this case, a peaceful and transparent mechanism to neutralize an existential threat to the Republic.

Nor is it antidemocratic to impose conditions of eligibility for public office. For instance, Article II of the Constitution puts the presidency off limits to anyone younger than 35. If we have decided that a 34-year-old is, by definition, not mature or reliable enough to hold such immense power, then surely we can decide the same about a 76-year-old who incited an insurrection in an attempt to keep that power.

So could Section 3 really be used to prevent Trump from running for or becoming president again? As a legal matter, it seems beyond doubt. The Capitol attack was an insurrection by any meaningful definition— a concerted, violent attempt to block Congress from performing its constitutionally mandated job of counting electoral votes. He engaged in that insurrection, even if he did not physically join the crowd as he promised he would. As top Democrats and Republicans in Congress said during and after his impeachment trial, the former president was practically and morally responsible for provoking the events of Jan. 6. The overwhelming evidence gathered and presented by the House’s Jan. 6 committee has only made clearer the extent of the plot by Trump and his associates to overturn the election— and how his actions and his failures to act led directly to the assault and allowed it to continue as long as it did. In the words of Representative Liz Cheney, the committee’s vice chair, Trump “summoned the mob, assembled the mob and lit the flame of this attack.”

A few legal scholars have argued that Section 3 does not apply to the presidency because it does not explicitly list that position. It is hard to square that claim with the provision’s fundamental purpose, which is to prevent insurrectionists from participating in American government. It would be bizarre in the extreme if Griffin’s behavior can disqualify him from serving as a county commissioner but not from serving as president.

It’s not the legal questions that give me pause, though; it’s the political ones.

First is the matter of how Republicans would react to Trump’s disqualification. An alarmingly large faction of the party is unwilling to accept the legitimacy of an election that its candidate didn’t win. Imagine the reaction if their standard-bearer were kept off the ballot altogether. They would thunder about a “rigged election”— and unlike all the times Trump has baselessly invoked that phrase, it would carry a measure of truth. Combine this with the increasingly violent rhetoric coming from right-wing media figures and politicians, including top Republicans, and you have the recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were a barrier to invoking the law, many laws would be dead letters.

The more serious problem with Section 3 is that it is easy to see how it could morph into a caricature of what it is trying to prevent. Keeping specific candidates off the ballot is a classic move of autocrats, from Nicolas Maduro in Venezuela to Aleksandr Lukashenko in Belarus to Vladimir Putin. It sends the message that voters cannot be trusted to choose their leaders wisely— if at all. And didn’t we just witness Americans around the country using their voting power to repudiate Trump’s Big Lie and reject the most dangerous election deniers? Shouldn’t we let elections take their course and give the people the chance to (again) reject Trump at the ballot box?

To help me resolve my ambivalence, I called Representative Jamie Raskin of Maryland, who sits on the Jan. 6 committee and taught constitutional law before joining Congress. He acknowledged what he called an understandable “queasiness” about invoking Section 3 to keep Mr. Trump off the ballot. But Mr. Raskin argued that this queasiness is built into the provision. “What was the constitutional bargain struck in Section 3?” he asked. “There would be a very minor incursion into the right of the people to elect exactly who they want, in order to obtain much greater security for the constitutional order against those who have demonstrated a propensity to want to overthrow it when it is to their advantage.”

… I still believe that the ideal way for Trump to be banished for good would be via the voters. This scenario is democracy’s happy ending. After all, self-government is not a place; it is a choice, and an ongoing one. If Americans are going to keep making that choice— in favor of fair and equal representation, in favor of institutions that venerate the rule of law and against the threats of authoritarian strongmen— they do it best by themselves. That is why electoral victory is the ultimate political solution to the ultimate political problem. It worked that way in 2020, when an outright majority of voters rejected Trump and replaced him with Joe Biden.

But it’s essential to remember that not all democracies have happy endings. Which brings us to the most unsettling answer to the question I began with: Sometimes a democracy doesn’t protect itself. There is no rule that says democracies will perpetuate themselves indefinitely. Many countries, notably Hungary and Turkey, have democratically undone themselves by electing leaders who then dismantled most of the rights and privileges people tend to expect from democratic government. Section 3 is in the Constitution precisely to help ensure that America does not fall into that trap.

Whether or not invoking Section 3 succeeds, the best argument for it is to take the Constitution at its word. “We undermine the importance of the Constitution if we pick and choose what rules apply,” Cicilline told me. “One of the ways we rebuild confidence in American democracy is to remind people we have a Constitution and that it has in it provisions that say who can run for public office. You don’t get to apply the Constitution sometimes or only if you feel like it. We take an oath. We swear to uphold it. We don’t swear to uphold most of it. If Donald Trump has taught us anything, it’s about protecting the Constitution of the United States.”

Surely the remedy of Section 3 is worth pursuing only in the most extraordinary circumstances. Just as surely, the events surrounding Jan. 6 clear that bar. If inciting a violent insurrection to keep oneself in office against the will of the voters isn’t such a circumstance, what is?

I understand Wegman's reticence, bit I can't see the 14th Amendment being used to prevent Trump from running again. I don't see Biden or Garland having the intestinal fortitude to taking that step. I'm sure you know if you're a regular DWT reader, in Howie-world this wouldn't have even been a problem, since Trump would have been court-martialed, dragged out in front of a firing squad and shot immediately after the coup attempt. But if they do decide on that route, it wouldn't be fair that Trump is the only person it's used against...