Wasserman, Democrats Explore Using 14th Amendment To Bar Trump From Holding Office

Wasserman, Democrats Explore Using 14th Amendment To Bar Trump From Holding Office

Congressional Democrats are now toying with an anti-democratic effort based on an obscure Civil War-era provision

Mona Salama
Mona Salama
January 10, 2022

Democrats are preparing to keep former President Trump from even contemplating another run for the White House, reviving an arcane post-Civil War constitutional amendment to prevent voters from freely deciding if they want to vote for the return of an ex-president.

A handful of congressional Democrats are investigating how to revive a tool that was added to the Constitution in 1868 and hasn't been used since 1919. It's the Fourteenth Amendment's Disqualification Clause, a Reconstruction-era ban on ex-Confederates holding elected office never intended for events like Jan. 6.

Section 3 of the 14th Amendment bars from serving in office anyone who, having "taken an oath" as an officer of the United States, engages in "insurrection or rebellion against the same." Congress had not used Section 3 on an elected official since 1919 when they refused to seat the first Socialist elected to Congress, Victor Berger, on Section 3 grounds. Berger opposed U.S. involvement in World War I and was later prosecuted and convicted under the Espionage Act. The House referred his case to a special committee that concluded he was ineligible for membership and refused to seat him.

Those who view the event of Jan. 6 as an insurrection think they have a case to trigger the clause.

According to The Hill, calls for Congress to take steps to stop Trump from running for office again have been muted following Democrats' failure to impeach the former president for the second time around in the aftermath of the Jan. 6 riot. However, there are a handful of Congressional lawmakers who remain focused on preventing Trump at all costs and are active in discussions about invoking Section 3 of the 14th Amendment towards the former president.

By declaring the Jan. 6 riot an "insurrection," Congressional Democrats and liberal activists hope to bar Trump as well as incumbent Congressional Republicans from running. However, members of Congress who supported challenging the electoral votes, as Democrats have repeatedly done so in prior years.

Congressional Democrats have approached Laurence Tribe, a constitutional expert at Harvard Law School, on the best way to apply the Amendment to the former president. Among those speaking with Tribe include Reps. Debbie Wasserman Schultz (D-FL), Jamie Raskin (D-MD), who also was a House impeachment manager for Trump's second impeachment and currently sit on the Jan. 6 House Select Committee and Jerry Nadler (D-NY), who chairs the powerful House Judiciary Committee who also was an impeachment manager.

"I continue to explore all legal paths to ensure that the people who tried to subvert our democracy are not in charge of it," Wasserman Schultz told The Hill.

Raskin, who is also a former constitutional law professor, discussed the constitutional provision days after Trump's acquittal in the Senate, saying the former president was "right in the bullseye middle of that group."

"Donald Trump is right in, you know, the bullseye middle of that group," Raskin said in an interview with ABC News' "Powerhouse Politics" on Feb. 17, adding that the legal mechanics would require "more research" and how the Amendment could be enforced remains to be seen. "And so, he really does fulfill exactly the constitutional prohibition there."

"So we'd have to figure it out and do some more research about all of that, but the point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office," Raskin added. "Presumably, it could be done both affirmatively and defensively. People — you know, if he tried to run for office again — people could try to stop him in the states. It also conceivably could be an affirmative statement by state legislators, by Congress, by other institutions."

It's unclear what mechanism could be used to apply Section 3 to Trump. Some scholars believe the House and Senate could vote by a simple majority to find if Trump engaged in insurrection against the government, which would implicate the constitutional provision.

However, other experts, including Tribe, say Congress would need to go further, either by assigning that fact-finding role to a federal court or establishing a neutral fact-finding body to determine whether Trump engaged in insurrection under Section 3.

In addition to legislative discussions, some left-wing groups are also exploring the possibility of pressuring state elections officials amendment without going through Congress. One pro-democracy group, Free Speech For People, has mounted a pressure campaign on top state elections officials to apply the 14th Amendment to Trump should he run again.

The group over the summer sent letters to chief election officials in all 50 states and Washington, D.C., making the case that they have a constitutional duty to bar Trump from appearing on future state ballots. They argued the provision doesn't require additional steps by Congress because the 14th Amendment is already operative by itself.

But if elections officials don't comply with the left-wing group pressure, they intend to bring litigation — lawsuits that could face serious hurdles and would likely face a challenge in the Supreme Court. Also, Trump could bring lawsuits challenging his exclusion from a ballot and would "stand a good chance of success."

The push to disqualify Trump under the 14th Amendment will be based on what the Jan. 6 House panel ultimately reveals about his alleged role in the events of that day.

"Once that committee makes clear, as I trust it will, that what took place was indeed an insurrection that triggers Section 3 of the 14th Amendment and that supports criminal prosecution by DOJ of those responsible, it is difficult to imagine this not becoming a logical next step," Tribe said.

While Trump has not formally announced his intent to make a comeback for a 2024 run, he has continuously teased about running again, telling numerous outlets that he is expected to make a final decision following the 2022 midterm.

Mona Salama

Mona Salama

Mona Salama is a political reporter for The Floridian covering Congress, the White House and Congressional elections.

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