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Ban Trump from public office?

“Donald Trump might already be ineligible to serve as president of the United States in the future,” Harvard law professor Noah Feldman says (in an op-ed here). He’s referring to the 14th Amendment, Section 3, which says,

“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. But Congress may by a vote of two-thirds of each House, remove such disability.”

This provision is part of the so-called “Civil War amendments,” and was enacted to ban former Confederates from holding federal offices, although Congress lifted that ban in 1872.

This isn’t a fresh story. Within days after the January 6, 2021 insurrection, stories appeared in the media suggesting Trump could be barred from future office under it. For example, CBS News ran a piece on January 11, 2021, that began, “An obscure provision of the 14th Amendment to the Constitution has emerged as a possible means of preventing former President Donald Trump from holding future federal office” (read it here). Similar stories can be found in the websites of many other media outlets.

Not everyone agrees the 14th Amendment could even apply to Trump (or any other president). For example, this piece in National Review, a conservative magazine, argues that “it refers to electors of the president and vice president, not the president and vice president themselves.” However, Section 3 does apply to “any office,” and the presidency clearly is a federal office. The author tries to get around this with twisted logic.

When Prof. Feldman asks, “Does this provision to apply to Trump?” he doesn’t see any such problem in Section 3’s wording, and says, “The first part certainly does: Trump took an oath to uphold the Constitution when he became president.” The tricky part, he says, is the second part: “Has Trump’s conduct amounted to insurrection?” His op-ed goes onto to discuss that in detail, which you can read by clicking on the link above.

The Democrats are actively thinking about whether they can use the 14th Amendment to keep Trump from running for president again. See, e.g., the New York Post article published today here. Another Harvard law professor, Laurence Tribe, says “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.”

And the House committee investigating the Jan. 6 Capitol riot is compiling evidence that could be used to pin the “insurrection” label on Trump’s actions that day.

The New York Post article says it’s unclear “what mechanism” would be used to apply it. That could be the courts, or a simple majority vote in both houses of Congress (which won’t happen if Republicans control either house). One Democratic group wants states to use it to keep Trump off their ballots (which won’t happen in GOP-controlled states).

As for me, I wouldn’t hold my breath. If Trump does run again, I think the prevailing attitude is going to be, “Let the people decided.”

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0 Comments Add Yours ↓

  1. Mark Adams #
    1

    Samuel Chase answered this question over a century ago when there were plenty of rebels walking about and running for office. Basically to apply the penalty an individual has to be prosecuted in the courts and given due process.

    First you gotta find a prosecutor who thinks the amendment even applies to Trump. After all he was President when all this happened. He would have had to perform a coup against himself, Joe did not become President until he took the oath of office. The bad things imagined did not take place and no mob has headed for the White House or te Caital.

    Seems Democrats re afraid, very afraid. These keepers of the flame of Democracy sure seem undemocratic, seems they may just be after political power, the ends justify the means. Sota what they accuse Trump of. [Edited comment.]

  2. Roger Rabbit #
    2

    Which Samuel Chase are you referring to? Justice Chase died in 1811; Rep. Chase died in 1838. You are mistaken that a prosecution or conviction is needed to bar a person from holding office under the 14th Amendment; it’s “imposed by simple majorities of the House and Senate” (details here). The Democrats are justifiably worried about whether our democracy will survive the GOP’s drift to fascism. The Capitol insurrection was an attack against the civil rights and freedom of the 81 million Americans who voted for Biden.