Could the Senate Still Vote To Bar Trump From Ever Holding Federal Public Office Again? In Fact...

Now that Trump has been acquitted by the Senate, the “bonus round” of barring him from holding federal public office under Article I, Section 3 of the Constitution—which would have permitted “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” to attach by a simple majority vote—is off the table. But does that mean Trump can run again in 2024?

The short answer is “Yes, but…” It turns out, there is another provision of the Constitution quietly being discussed which has not been used in over 100 years. That provision is contained within the 14th Amendment, Section 3 and states as follows:

“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.” (Emphasis added.)

That’s right, there’s an “insurrection” exception to holding federal office. It was put in after the Civil War to ensure that members of the Confederacy couldn’t sit as members of Congress after their defeat. It was vigorously enforced until 1872, after which President Grant and the Republicans in Congress enacted an amnesty for all Confederate officers.

The text, as well as past practice, makes clear that Congress could enact a bill that names certain individuals as having engaged in insurrection, or given aid or comfort to the enemies of the United States. The section was used (rather cynically) back in 1919 to prevent a socialist named Victor L. Berger from being seated in the House after he had spoken out about U.S. involvement in World War I. And last month, such a bill was under quiet consideration by Senators Tim Kaine and Susan Collins in advance of the impeachment trial. Many waived it away as a useless distraction, but it might still gain steam now, if the point is to keep Trump from running again.

With simple majority votes in the House and Senate (presumably joined by the same GOP members who voted to impeach and acquit) the bill would go to President Biden, who might be willing to sign it. Some have argued that this would comprise an illegal “bill of attainder,” which the Supreme Court has defined as “a legislative act which inflicts punishment without a judicial trial.” The question is a complex one because the 14th Amendment does grant Congress the right to bar insurrectionists, and in drafting this section, the question of bills of attainder was hotly debated and settled, meaning either that this is not a criminal punishment covered by the prohibition, or it is an express exception carved later into the Constitution.

But even if Trump had a right to have this bill and his status under it challenged in a court of law, he might very well lose. The evidence against him is staggering, and very little of the evidence and arguments his lawyers deployed during the impeachment trial would be permitted in court. This is because the rules of evidence would be much stricter, just as they were in all the election cases the Trump team lost despite making the same false statements of fraud to the press and on social media with impunity. Further, courts might want to defer to Congress’s factual findings in such a bill, given the language and historical purpose of the Amendment, and those could be devastating to Trump’s case.

The main drawback to this approach is of course political. If we open this possibility up, then future Congresses with Republican majorities might seize upon it as a weapon to bar popular Democrats from holding office, simply by tarring them with the label “enemy of the United States.” This mirrors the recent concern some expressed about the House voting to strip Marjorie Taylor Greene of her committee assignments through simple majority vote. The counter-argument is that we have never before seen the likes of the January 6 insurrection, just as we haven’t had death threats and anti-Semitic conspiracies so casually flung by a sitting House member before. Extraordinary times require extraordinary measures, and therefore those measures are of limited precedent.

But beyond this lies the question of whether we really want to put the nation through a second insurrection trial of Donald Trump. His supporters would cite this as yet another example of his continued victimization, yet another “witch hunt.” The media circus around it might distract from important goals the administration wants to achieve. The way around these problems is perhaps a quieter lobby, where the bill winds up receiving the blessing of Mitch McConnell and is announced with strong bipartisan support. Given the desire of many within the GOP to move beyond the era of Trump, this is not completely out of the realm of possibility.