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If the goal of prosecuting former President Donald Trump is to protect American democracy from a Trump comeback in 2024, there’s a better way to go than filing criminal charges. Instead, Congress should exercise its constitutional authority to bar Trump from running for president again.
Section 3 of the 14th Amendment defines the procedure. It provides that no person may hold federal office who, after being sworn in as a federal officer to uphold the Constitution of the United States, has engaged in insurrection or rebellion against it.
It was written in the aftermath of the Civil War and with that conflict in mind. But the scope of this disqualification is not limited to this rebellion alone. Instead, it extends to any insurrection against the constitutional government of the United States.
The issue of using the 14th Amendment to prevent Trump from seeking future public office arose in the aftermath of the Jan. 6 insurrection. But the evidence gathered by the House Select Committee and exposed during its hearings underscores how appropriate it would be to use this provision in the Trump case and how much simpler this approach would be than taking the dramatic step. to file criminal charges against the former. President.
Here’s how it would work: Congress would pass a law, exercising its authority under the 14th Amendment, that would authorize the Justice Department to bring a civil suit to bar Trump from running for president. Congress can clarify under its new statute that it considers the Jan. 6 attack on the constitutional vote count procedure to amount to insurrection for purposes of the disqualification clause of the 14th Amendment.
Of course, Congress could have achieved the same goal by convicting Trump in the second impeachment trial, the one that charged him with inciting insurrection, which would have resulted in Trump’s disqualification from holding federal office again. .
But enough GOP senators, including Senate Minority Leader Mitch McConnell (Ky.), felt impeachment was improper because Trump had already left office by the time the Senate trial began. That argument wouldn’t apply here, so Congress has the option to do a takeover if it’s willing to take it.
Of course, that’s a big if, given that 10 Republican senators would have to agree to overcome a filibuster. But seven Republicans voted to convict Trump in the second impeachment proceedings. It is not impossible to imagine that three others would be ready to vote in favor of this status. After all, they don’t have to declare Trump unfit for office; they need only authorize the Department of Justice to pursue the disqualification in court.
Technically, Congress cannot specifically label Trump as a disqualified insurgent in such status. This would risk judicial invalidation for violation of a separate constitutional provision, the Infringement Clause Bill, which prohibits Congress, as the legislative branch of government, from determining the liability of a specific individual under the law.
But without specifically naming Trump, the law can direct the Justice Department to initiate civil disqualification proceedings against any participant in the Jan. 6 Uprising, and the law can further define for the purposes of those civil decisions that the participants include anyone who orchestrated or furthered the insurgency. without personally taking up arms at the Capitol.
Confederate President Jefferson Davis, after all, fell within the scope of Section 3 as a participant in the Civil War rebellion, even though he was not a Southern soldier. A well-crafted law would be simple enough for the Justice Department to enforce against Trump in light of compelling evidence of his efforts to prevent the peaceful transfer of power.
This approach would better serve the goal of protecting democracy than a criminal prosecution of Trump. On the one hand, the civil disqualification litigation procedures that Congress would be entitled to enact given its power to enforce the 14th Amendment through appropriate legislation of its own choosing would avoid all the additional burdens of a criminal trial, including proof beyond a reasonable doubt.
Moreover, protecting the 2024 election from the kind of subversion Trump attempted in 2020 doesn’t require putting him in jail for his past criminality. Instead, what is needed is to prevent him from being a candidate again.
The purpose of the disqualification clause of the 14th Amendment is to prevent insurgents from having a second chance to overthrow the Constitution. If there is not enough patriotism to implement this remedy, given the clear and present danger that former federal judge J. Michael Luttig described in his testimony before the committee, then the Republic is truly in difficulty.
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