On Thursday, a group of leading civil society organizations sent a letter to Senate Majority Leader Chuck Schumer (D-NY) asking for Congress to use the 14th Amendment of the U.S. Constitution to disqualify Donald Trump from running for the presidency again. As many Just Security readers know well, the 14th Amendment of the Constitution includes a provision (section 3) that can be used to disqualify individuals in a specific category – including former U.S. officials — from holding public office if they “engaged in insurrection” or have “given aid or comfort” to insurrectionists.
The open political question is whether Congress has the willpower to apply this authority to Trump, now following the failed but highly bipartisan vote for conviction in the Senate impeachment trial. The letter from the civil society organizations shows awareness of the political realities, mentioning statements by Republican Senators at the end of the trial who were critical of Trump’s behavior.
Not mentioned in the letter is that the article of impeachment itself included section 3 of the 14th Amendment in reference to Trump’s conduct. In that respect, a bipartisan majority of both houses of Congress have already decided the provision applies to Trump, Professor Mark Graber wrote earlier this week. “The inclusion of Section 3 in the impeachment indictment and the subsequent vote in the Senate indicate that a majority of representatives and senators believe President Trump is subject to disqualification under Section 3, but such disqualification requires a legislative proceeding separate from impeachment,” Graber said.
The civil society letter to Schumer recommends one of two paths. It states that Congress could either:
● Pass legislation that (a) includes findings and expresses its view that Section Three applies to former President Trump and (b) establishes a formal enforcement mechanism for federal courts to determine whether Section Three applies to former President Trump (i.e., judicial review) and any other office-holder who engaged in the January 6th insurrection; or
● Pass a resolution with factual findings and expressing its view that Section Three applies to former President Trump. Though a resolution would not have the force of law, it would cast a cloud over any future candidacy by Trump and provide grounds for further actions challenging a future candidacy.
In a opinion piece in the Washington Post on Tuesday, two prominent former Republican members of Congress from Missouri – Representative Tom Coleman and Senator John C. Danforth – also urged Congress to pursue such legislative options. They explained the rationale for their proposal:
In addition to not being subject to a two-thirds majority vote, such legislation has numerous advantages. First, it would provide a strong basis for state election officials or political opponents to challenge [Trump’s] candidacy based on Congress’s finding that Section 3 disqualifies him from holding office. This would create a cloud of illegitimacy over a potential Trump candidacy, deterring supporters and donors. Second, while it is most important to prevent any future Trump campaign, any judicial procedures created by Congress could also be used to disqualify others involved in the Jan. 6 insurrection from holding future office.
The civil society groups signing onto the letter to Sen. Schumer include Citizens for Responsibility and Ethics in Washington (CREW), Common Cause, MoveOn Civic Action, Project on Government Oversight (POGO), Protect Democracy, and several others. The letter refers to an attached legal memorandum addressing concerns that members of Congress may have about use of section 3 in the present circumstances.