While Democrats pursue efforts to use either the 25th Amendment or impeachment to remove him from office in his final full week as President, they’re also considering how to deal with senators and congressmen who acted with him.
One potential avenue getting more attention is a provision of the 14th Amendment, which bars from federal or state office any officeholder who takes part in insurrection or rebellion against the US.
Trump White House
Democrats who introduced an article of impeachment on Monday against Trump cited the 14th Amendment in the text as an argument for impeaching him.
That language could also be employed against members of Congress who supported Trump’s effort, according to Rep. Cori Bush, a freshman Democrat from Missouri.
“Tomorrow, I’m introducing my resolution to expel the members of Congress who tried to overturn the election and incited a white supremacist coup attempt that has left people dead. They have violated the 14th Amendment,” Bush said Sunday on Twitter. “We can’t have unity without accountability.”
House Speaker Nancy Pelosi has asked members of Congress for their input on whether to pursue such an effort.
What does the 14th Amendment do?
The 14th Amendment was an incredibly consequential addition to the Constitution back in 1866 after the Civil War. It gives citizenship to anyone born in the United States and guarantees “equal protection under the laws” to all citizens and imposed the Bill of Rights on the states.
Trump has argued during his presidency that the birthright citizenship clause of the Amendment should be changed.
But it’s the much less-known language of Section 3 of the 14th Amendment that deals with acts of insurrection:
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.
Clearly all officeholders took an oath to uphold the Constitution. And the Constitution calls for an election an Electoral College vote to determine the next president. Anyone complicit in inciting the riot bent on stopping that process could reasonably be considered to have violated it.
But expelling lawmakers is not something Congress does lightly. A handful of lawmakers were expelled at the outbreak of the Civil War for supporting the Confederacy. No lawmaker has ever been dismissed using the 14th Amendment since its ratification after the war.
Only two other congressmen were expelled, for ethics violations, in the intervening 160 years. Usually, lawmakers with massive legal issues resign.
What about members of Congress?
Lawmakers who may be targeted by Bush’s effort to apply the amendment in Congress include Republican Reps. Mo Brooks of Alabama and Louis Gohmert of Texas took part in the Washington rally the sparked the storming of the Capitol. “Today is the day American patriots start taking down names and kicking ass,” Brooks told Trump’s supporters on Wednesday, before they tried to disrupt the American government.
Republican Sens. Josh Hawley of Missouri and Ted Cruz of Texas have also been discussed as 14th Amendment violators. They’re the senators who objected to counting electoral votes, along with many more colleagues in the House, and Hawley raised a fist to the rioters in solidarity before they stormed the Capitol.
How a 14th Amendment case would look
The 14th Amendment case might be easier to make against Brooks and Gohmert than Hawley and Cruz.
“Those who spoke words of violence, incitement to riot at the rally before the attack on the House, they are potentially culpable for insurrection,” Norm Eisen, who served as an attorney for Democrats during Trump’s impeachment, told CNN.
It might be more difficult to make the 14th Amendment case against Cruz and Hawley, who, despite the fact that they spread lies about the election on the Senate floor, could argue they were trying to defend democracy, not incite the riot.
Not even all Democrats are ready to definitively say they’re ready to pursue a 14th Amendment case against their colleagues.
“I think it is applicable. But this is something we have to talk about,” said Rep. Jim McGovern of Massachusetts, who chairs the House Rules committee, during an interview on CNN, although he certainly thinks they should resign.
“The people who helped cause this are not the people who can lead in healing. They need to move out of the way. To try to overturn a legitimate election and trample on the will of the American people is something that is unforgivable. These people do not belong in office,” he said.
While Congress does have the ability to expel members, the language of the 14th Amendment suggests, which refers to Congress enforcing the provisions of the amendment “by appropriate legislation,” suggests a President would also have to sign off.
Congress does have the ability, with a two-thirds supermajority, to expel a member. That would require support from Republican lawmakers.
Former Rep. Charlie Dent, a moderate Republican from Pennsylvania and now a CNN political analyst, said Congress should let the voters decide the fate of their representatives.
“Many of these members have exercised terrible political judgment, particularly senators Hawley and Cruz, but at the end of the day, I think they have should be judged by their voters for their deeds and their horrible judgment,” he said.
The 14th Amendment and Trump
The 14th Amendment could also be applied against Trump, should he seek office in the future, to exclude him from the ballot, said Gerard Magliocca, a law professor at Indiana University who recently wrote about the history and application of the amendment’s third section. Read his paper here.
Magliocca said the 14th Amendment had excluded Confederates from running for office after the Civil War. That is, until Congress passed a sort of blanket amnesty removing that penalty from most Southern men as part of an effort at reconciliation. (There was, bizarrely, a symbolic effort that granted the same courtesy to Robert E. Lee and Jefferson Davis in the 1970s.)
Today, if a state decided Trump had violated the 14th Amendment, he might have to sue to get on the ballot. If lawmakers from both chambers of Congress pass resolutions that he had violated the Amendment, it could also have the effect of keeping him from federal office in the future.
“It’s something more than a censure, which just says, “you were bad and don’t do it again, right? But it’s something less than an impeachment because it doesn’t require an impeachment trial and the two thirds vote in the Senate and so on. So it’s a way of thinking about this in a more of a compromise kind of fashion,” Magliocca said, although he added it would previously would have been impossible to imagine using a provision written to keep insurrectionists out of government against a sitting US President who is already in charge of the government.
“That part is more novel,” he said. “But I think it’s consistent with the sort of underlying purpose of it, which is to keep people out of office who have so severely betrayed the public trust that they cannot be trusted with all this again.”
He also pointed out that when the amendment was first passed, Congress passed a law, which is still on the books, to give the Department of Justice power to remove ineligible people from office.