As Congress ponders ways of removing President Donald Trump from office after some of his supporters stormed the U.S. Capitol on Jan. 6, several methods have been discussed.
Invoking the 25th Amendment is one possibility, but that would require Vice President Mike Pence and a majority of the Cabinet to put that into motion. So far, Pence has been reluctant to take that route, even though the House is voting on a resolution urging him to invoke the amendment to remove Trump from power.
Impeachment is another avenue, and the House is expected to vote Wednesday morning on a resolution, House Majority Leader Steny Hoyer told Democrats during a caucus call Monday. But even if the House passes its proposed article of impeachment, it is unlikely that a Senate trial would be conducted before President-elect Joe Biden takes office on Jan. 20.
Republicans, such as House Minority Leader Kevin McCarthy, favor an alternative measure, which censures the president.
However, an obscure provision of the 14th Amendment may be the most effective remedy for Congress. The amendment, passed by Congress on June 13, 1866, and ratified on July 9, 1868, provides citizenship and equal protection under the law to anyone born or naturalized in the United States. That included formerly enslaved and free Black people.
The passage notes that “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.”
It is a passage that caught the eye of Eric Foner, one of the United States’ top Civil War historians. Foner has written many books on the Civil War era, including “Reconstruction: America’s Unfinished Revolution, 1863-1877” in 1988, the Pulitzer Prize-winning “The Fiery Trial: Abraham Lincoln and American Slavery” in 2010 and “The Second Founding: How the Civil War and Reconstruction Remade the Constitution” in 2019.
Foner, a professor emeritus of history at Columbia University, said he was horrified when protesters swarmed over barricades and broke into the Capitol.
“I was watching just like anyone else, with my mouth hanging open,” Foner told The Washington Post.
Then Foner began looking into the disqualification clause of the 14th Amendment.
“Nobody really had heard about this except people like me who study this era,” Foner told the Post. “And then I had other historians emailing me saying, ‘Wouldn’t Section 3 apply here if Trump is guilty?’”
While Section 3 probably would not end Trump’s presidency, it could be used to prevent the president or other politicians who supported the attack on the Capitol from holding office in the future, according to the Post.
It also would be easier for Congress to pass. An impeachment conviction requires a two-thirds majority in the Senate. Only a simple majority in both houses is necessary to pass Section 3. So, if Congress declares that Trump engaged in an act of “insurrection or rebellion” and passes the measure, the president would be barred from holding a future office.
Gerard Magliocca, an Indiana University law school professor, said a majority vote in Congress would express lawmakers’ opinion that Section 3 applies. The courts would then have to make that legal declaration.
“It’s not just something that Congress can do,” Magliocca told the Post.
If the measure passes and legal challenges fail, there is still an appeal mechanism within Section 3. Trump could run for the White House again in 2024 – but only if a future Congress approves to “remove such disability” by a two-thirds vote in each house.
Section 3 is the only exception to the president’s pardon power aside from impeachment, Magliocca wrote in a 67-page paper published last month.
“It reflects the bitter antagonism between Congress and President Andrew Johnson that led to the proposal of the 14th Amendment in the first place,” Magliocca wrote. “President Johnson issued pardons to many former Confederates in a way that upset leading members of Congress, and they were unwilling to give Johnson or any other president the ability to remove Section 3 disabilities.”
Section 3 has been invoked once since Reconstruction. In 1919, Congress barred Victor L. Berger, a socialist from Wisconsin, from occupying a seat in the House after he opposed the United States entering World War I, the Post reported.
Impeachment proceedings run the risk of undermining Biden’s administration after he takes office next week. Still, Magliocca believes Section 3 provides an alternative to a messy congressional fight.
“I thought of it as soon as people started to use the word ‘insurrection,’” Magliocca told the Post.