Why Congress must invoke the 14th Amendment now

After the Senate acquitted him, Donald Trump and his political adherents pose a more serious threat to democracy than ever. Trump has lost no time in declaring victory, raising money, wielding influence, and consolidating power. He is already looming large over the midterm elections and will soon start vetting 2022 candidates. In recent days at Mar a Lago, he hosted high-priced fundraisers and met with his former campaign manager and with House Minority Whip Steve Scalise (R-La.). He is speaking at the Conservative Political Action Conference, and his senior adviser (and daughter-in-law) Lara Trump now says he’s thinking of recapturing the White House in 2024.

Could Trump really become president again after the events of Jan. 6? The 14th Amendment to the Constitution directly addresses that question in a way that impeachment does not.

In the impeachment trial, 43 Senate Republicans overlooked Trump’s obvious culpability and voted to acquit him on the ground that impeachment, as Sen. Mitch McConnell (R-Ky.) said, is “a narrow tool” that can remove a sitting president from office, not try him as private citizen once he’s left. That argument let McConnell prevaricate, arguing both that Trump was responsible for the insurrection and that convicting him would have been wrong. Trump “didn’t get away with anything yet,” McConnell assured us and punted to redress in the courts.

But Trump’s political resurgence looks a lot like impunity. It’s therefore urgent to hold him accountable under the Constitution.

If impeachment is considered too “narrow” for that, Section 3 of Article 14 is just as narrowly designed to apply to cases such as Trump’s. It says very plainly that any person who previously held office, took an oath to uphold the Constitution of the United States and has since “engaged in rebellion or insurrection” or “given aid or comfort” to such conduct is disqualified from serving again in any office that requires upholding the Constitution. It was adopted after the Civil War to prevent Confederates who attacked the Union from regaining office. Most of those whom Section 3 excluded from serving were granted amnesty in 1872, and it hasn’t been used since. But if there was ever a time to reinvoke it, it’s now.

It doesn’t take a legal scholar to understand Section 3’s clear language or to appreciate the fact that it applies to Trump and others who aided or comforted the insurrectionists. Fifty Democrats and seven Republicans voted to convict Trump for doing just that. McConnell — who voted not to impeach — eloquently made the case that Trump’s outrageous conduct was responsible for the “riot.”

Even though the scale was smaller than the Civil War, that “riot” was an attack on the Union and one of its central pillars: the peaceful transition of power. It therefore qualifies as “rebellion or insurrection.” The Constitution requires Congress to count Electoral College votes for president and vice president to ensure peaceful transfer of power. Attempting to prevent that by violence unambiguously constitutes insurrection. No color of legitimacy can be attached to bursting into the halls of Congress to “stop the steal.”

Trump and others created the belief that legitimate voting, upheld by dozens of judicial decisions, was a fraud. This lie was part of a course of conduct that included violent efforts to subvert the peaceful transfer of authority to our country’s highest offices. Yet Trump and his supporters are continuing this course of conduct — and advancing the lie that Biden’s presidency is illegitimate.

Section 3 does not require that Trump or others engage directly in insurrection themselves to be prohibited from holding office again. Giving “aid or comfort” is enough. Trump aided the insurrection by intentionally and knowingly refusing to protect members of Congress whose lives the insurrectionists threatened. He gave comfort to those who sought to murder the vice president and leaders of the Democratic Party, even telling them afterward — openly and brazenly — that he loved them.

Senate Republicans hoped to sound plausible by arguing under Article 2 Section 4 Trump couldn’t be convicted once out of office, though many Constitutional scholars in both parties say that’s wrong. But there is no plausible argument whatsoever against applying Article 14, Section 3 to the Jan. 6 insurrection. There’s no clever way around its direct prohibition against those who engage in insurrection or who give it aid or comfort from holding office again.

Many present and past members of Congress and public officeholders across the country have done and continue to do just that, and Section 3 disqualifies them from office. Congress must now enact a legal mechanism to enforce it. This is not optional. It’s a Constitutional requirement, and it’s urgent. Every day that goes by without it undermines democracy and strengthens Trump and his insurrectionist movement.

Unlike impeachment, Congress has the votes as well as the Constitutional duty to enforce Section 3. It would take a simple majority to pass legislation affirming that Jan. 6 was an insurrection and that Section 3 applies those who gave it aid or comfort. Trump was already condemned for his role in it by a majority of both houses of Congress. If Republicans tried to filibuster such a bill in the Senate, they could be stopped with 60 votes. Fifty-seven Senators already voted to convict Trump. After McConnell’s speech, more could be found to uphold Section 3.

Although it may be politically inconvenient for some, Congress cannot pass over this obligation in silence. Members of Congress are sworn to uphold the Constitution and cannot ignore its clear provision on insurrection without violating their own oaths.

Jonathan Granoff is president of the Global Security Institute and representative to the United Nations World Summit of Nobel Peace Laureates. He chairs the Task Force on Nuclear Nonproliferation of the International Law Section of the American Bar Association, and he is a fellow of the World Academy of Arts and Science. He has testified as an expert before the U.S. Congress, United Nations, Canadian Parliament and U.K. Parliament. He was nominated for the Nobel Peace Prize in 2014.

Michael L. Prigoff is the managing attorney of Lebson & Prigoff, LLC. He is a former governor of the American Bar Association and a member of its House of Delegates and has also served as president of the New Jersey State Bar Foundation, chairman of the New Jersey Institute for Continuing Legal Education and as a trustee of the New Jersey State Bar Association. Follow him on Twitter @MichaelPrigoff.