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Opinion | Impeachment Isn’t the Only Option Against Trump (Published 2021)
Congress can invoke its constitutional power to bar the president from holding office again.
Just read this in the NY Times:
Congress should use its constitutional power to prohibit instigators and perpetrators of last week’s violent siege of the Capitol, including President Trump, from holding public office ever again.
On Monday, House leaders introduced an article of impeachment against the president for “inciting violence against the government of the United States,” an obligatory action, given the gravity of the president’s transgression. But this is not the only route for ensuring accountability. The Constitution has another provision that is tailor-made for the unthinkable, traitorous events of Jan. 6 that goes beyond what impeachment can accomplish.
Emerging from the wreckage of the Civil War, Congress was deeply concerned that former leaders of the Confederacy would take over state and federal offices to once again subvert the constitutional order. To prevent that from happening, Congress passed the 14th Amendment, which in Section 3 bars public officials and certain others who have “engaged in insurrection or rebellion” against the Constitution from serving in public office. Although little known today, Section 3 was used in the post-Civil War era to disqualify former rebels from taking office. And, in the wake of perhaps the boldest domestic attack on our nation’s democracy since the Civil War, Section 3 can once again serve as a critical tool to protect our constitutional order.
The 14th Amendment gives Congress the power to enforce Section 3 through legislation. So Congress can immediately pass a law declaring that any person who has ever sworn to defend the Constitution — from Mr. Trump to others — and who incited, directed, or participated in the Jan. 6 assault “engaged in insurrection or rebellion” and is therefore constitutionally disqualified from holding office in the future.
Congress can also decide how this legislation will be enforced by election officials and the courts, based on all the facts as they come out. The Constitution prohibits Congress from enacting so-called bills of attainder, which single out individuals for guilt. But, in addition to the legislation we suggest, Congress could also pass nonbinding sense-of-Congress resolutions that specify whom they intend to disqualify. This would provide a road map for election officials and judges, should any people named in those resolutions seek to run for or hold public office. And Congress can do this by a simple majority — far less of a hurdle than the two-thirds majority in the Senate that removing the president requires.
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