Time To Reconsider A Censure Resolution Pursuant To Section 3 Of The 14th Amendment

If chickenshit cowardly GQP senators are too afraid of their own radicalized and violent base voters, the domestic terrorists who sieged the Capitol on January 6, to do their constitutional duty and vote to convict Donald Trump for inciting sedition and insurrection against the United States government in this impeachment trial, then there needs to be a Plan B.

Donald Trump will do it again if he is not held accountable and is not legally constrained.

As I have posted about several times earlier this year, that Plan B is Section 3 of the 14th Amendment (which is included in the Article of Impeachment).

There is a bipartisan effort to disqualify Donald Trump from ever holding political office again under Section 3 of the 14th Amendment. McClatchy News reports, Trump censure promoted by Sen. Collins is still on the table as trial is set to begin:

House and Senate Democrats may push ahead this week with a censure resolution to bar former President Trump from holding future office over his role in the U.S. Capitol riot, anticipating acquittal in the Senate impeachment trial, several sources familiar with the matter told McClatchy.

The effort to draft the resolution that would invoke a provision of the 14th Amendment began quietly in January and gained momentum over the weekend, as Democratic Sen. Tim Kaine of Virginia and Republican Sen. Susan Collins of Maine gauge whether the measure could attract bipartisan support.

The reception has been lukewarm so far from Democrats, who would prefer to see the former president convicted in the impeachment trial, and from Republicans, who fear political consequences in barring Trump from office.

But a group of Democratic lawmakers may still proceed with the censure resolution this week, hoping to build public support and political momentum for the alternative as the trial proceeds, two sources said.

Some Democratic lawyers warn the strategy could backfire if taken to court and provide Trump with a rallying cry to run again for president in 2024 [that makes no sense; see explantion below], while others see it as the last, best chance to hold him accountable for attempting to overturn the 2020 presidential results and disrupt Congress’ certification of his loss.

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As the likelihood of Trump’s acquittal has grown, so too have calls within the Democratic caucus for an alternative path to prevent Trump from holding office again.

Rep. Debbie Wasserman Schultz of Florida first raised the idea of a dual-track process that would reserve a second constitutional pathway. Kaine then began exploring the idea on the Senate side.

Their attention has focused on Section 3 of the 14th Amendment, a rarely cited Civil War-era amendment which allows Congress to bar individuals from holding office if they have “engaged in insurrection.” A resolution to censure Trump would require a simple majority vote to pass in the House and Senate. [Democrats have the votes to pass this resolution without Republicans. We know that some Republicans are prepared to vote for this resolution.]

Constitutional scholars including Michael Gerhardt, Lawrence Tribe, Bruce Ackerman and Erwin Chemerinsky have advised lawmakers on the plan.

Ackerman, a professor of constitutional law and political science at Yale University, told McClatchy that President Biden would not be required to sign the resolution — but that nothing would stop him from voluntarily endorsing the effort, “vindicating the Constitution’s continuing importance.”

“The decisive precedent was established by Congress in 1869 when it implemented Section 3 through a Joint Resolution to disqualify all Confederate officials from service,” Ackerman said.

The three conservative justices appointed to the Supreme Court by Trump would likely read this statute as it was originally intended and support that the Congress is on sound legal footing, Ackerman said.

Some of the scholars, including Ackerman, have helped draft the resolution, engaging in late-night calls with congressional staff from the offices of Democratic Sens. Sheldon Whitehouse of Rhode Island, Dick Durbin of Illinois and Kaine, as well as Reps. Steve Cohen of Tennessee and Wasserman Schultz, among others.

“I’ve been working on it independently for a long time — we’ve done research, we’ve talked to some scholars on how it could be used,” Cohen said.

Cohen said he was not aware whether the proposal has the support of either of the top congressional Democrats, House Speaker Nancy Pelosi or Senate Majority Chuck Schumer, a prerequisite for the process to move forward.

Durbin, the second highest-ranking Democrat in the Senate and chair of the Judiciary Committee, suggested in late January that a resolution of some kind could follow an acquittal.

“I hope enough Republicans join us to impeach this president,” Durbin said on Jan. 27. “If they don’t, perhaps we’ll consider some alternatives.”

But some Democratic lawyers have raised concerns that the strategy could come back to haunt the party.

The Constitution does not allow Congress to punish an individual over a crime without due process or a trial — a process referred to in the founding document as a “bill of attainder.” Democratic lawyers have warned members of Congress that any move to bar Trump from holding office without conviction at an impeachment trial could provide him with a strong constitutional argument in any future court challenge.

This is a red herring, and is not a bar to disqualifying Donald Trump from ever running for office again, as the legislative record of Section 3 of the 14th Amendment clearly establishes.

James Wagstaffe, an Adjunct Professor teaching Civil Procedure at U.C. California, Hastings College of the Law, as well as Public Speaking at Stanford and Media Law at San Francisco State University, explains at Just Security, Time to Reconsider the 14th Amendment for Trump’s Role in the Insurrection (excerpt):

As the House impeachment managers consider their approach to the Trump impeachment trial, they should take a lesson from any good baseball ace: you get strike outs by using different pitches. However, so far the Democrats are approaching the Trump Senate trial as a zero-sum ballgame, in which victory depends solely on precluding the ex-president from holding future office by obtaining a supermajority Senate conviction for the high crime of inciting an insurrection.

But let’s be frank: the Senate is not going to convict Trump by the required two-thirds majority no matter how powerful the evidence of his calculated incitement and vicious interference with the election and its congressional confirmation.

A majority of the Senate will vote to impeach Donald Trump. A tyranny of a minority of Republican senators will prevent the senate from attaining the two-thirds majority vote necessary to convict.

Now don’t get me wrong, holding Trump accountable, this time for his calculated campaign to incite violence and disrupt our democratic institutions, is an inherently laudable goal. But such a pyrrhic pursuit ignores a better strategy  in this constitutional game: call for a Senate resolution – on a majority vote – that Trump’s misconduct violates the broader terms in section 3 of the 14th Amendment.

The History and Use of Section 3

Before the January insurrection, only constitutional law professors regularly ruminated about this little-known constitutional provision. The full 14th Amendment is more widely known for conferring citizenship and equal protection under the law for all citizens. However, section 3 provides a lesser-known tool for the House, which could accomplish their dual purposes of holding Trump accountable and precluding him from ever holding office again.

The oft-forgotten section 3 of the 14th Amendment provides in pertinent part:

No person shall [hold any United States or state office] who, having previously taken an oath, . . .as an officer of the United States, . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the (United States), or given aid or comfort to the enemies thereof.

This provision has a weighty history. Its genesis can be traced to the immediate post-Civil War period, aimed at barring supporters of the Confederacy from holding public office for acts in defiance of their prior oaths to the United States. After some initial and vigorous enforcement against former Confederate officials during Reconstruction, by 1872, Congress and President Ulysses S. Grant ceased enforcing  the provision.  In fact, in 1872 Congress passed an Amnesty Act for all but the most senior leaders in the South.

The 1872 amnesty, however, applied only to former Confederates. It did not negate the broad terms of section 3, which could still be applied to anyone in the future who violated his or her oath by engaging in insurrection or rebellion, or giving aid or comfort thereto.  In fact, in 1919, Congress utilized this constitutional provision to bar Victor L. Berger, a socialist from Wisconsin who had taken the oath as a prior member of Congress, from taking office in the House of Representatives following his speeches in opposition to the nation’s entry into World War I.

Impeachment vs. the 14th Amendment

The rules of the game for the impeachment trial present political and (arguable) constitutional obstacles to the home run result: conviction in the Senate.  For example, an overwhelming number of Republican senators have already committed themselves to the dubious “jurisdictional” evasion that the process cannot be applied to a former office holder.  Moreover, those acquittal-committed senators who do reach the merits have made it clear that they will seize upon supposed First Amendment principles – which preclude criminal liability for speech unless it expressly calls for specific and immediate acts of violence – to excuse the president’s actions from the constitutional, non-criminal remedy of impeachment and conviction.

The base path to victory in the form of a 14th Amendment, section 3 congressional resolution faces no such obstructions for two simple reasons.  First, no matter how dubious the arguments against the constitutionality of convicting a former president in an impeachment trial, there is absolutely no such argument for a jurisdictional barrier to a section 3 bar. The office holding bar in section 3 is expressly intended to be prospective and apply to former officeholders.

Second, the section 3 standard of “engaging” in an insurrection or rebellion and giving “aid or comfort” to those who are enemies of the country are easily satisfied by Trump’s conduct. Former President Trump plainly was “engaged” in (meaning “involved with”) the process leading to the violent invasion of Congress. Furthermore, whatever the challenges of showing that a speech constitutes an actual criminal incitement of violent rioters, Trump’s statements during and immediately after the attack on the Capitol – including telling the rioters “We love you. You’re very special,” and “I know how you feel” – clearly reach the threshold of giving “aid or comfort” to the insurrectionists who stormed the Capitol.

Perhaps most importantly, in the critical quest to hold Trump accountable, a resolution finding that the elements of section 3 have been satisfied requires only a majority vote. This requirement should be immediately achievable in both houses of Congress, both because Democrats hold these majorities and because the purported constitutional objections to impeachment conviction which have been advanced in the Senate are “swings and whiffs” for a section 3 resolution.

Objections to the Use of Section 3

Those who resist this use of section 3 have asserted that any preemptive Congressional action would be an unconstitutional bill of attainder (Art. I, sec. 9, cl. 3) prohibiting advanced criminal punishment of an individual by statute rather than judicial trial.  However, such concern ignores the explicit constitutional power of Congress to exercise its separate authority under section 3 of the 14th Amendment, and that those Republicans in the late 1860’s voting for the provision unanimously considered and rejected this precise argument of unconstitutionality.

Congressional resolutions (like censure and “sense of the Senate” votes) do not impose any criminal punishment or liability.  Rather, as described brilliantly by Mark Graber in his recent post “Section Three and (Not) Bills of Attainder,” those who voted for this amendment expressly rejected the bill of attainder objection because congressional legislation under section 3 would simply declare qualifications for office – not find anyone guilty of a criminal offense.  Senators Thaddeus Stevens (right) and Samuel Shellabarger, the persons most responsible for the 14th Amendment’s third section, highlighted that it simply described – as Congress may do by constitutional amendment – who is or is not an eligible officeholder in the future.

For example, Republican then-senators Lot M. Morrill and John Henderson highlighted this distinction between a penalty which is affixed to a crime and the act fixing the qualifications of future public office holders.  As Graber succinctly reports: “Section Three, these Republicans agreed, amended the qualification clauses of Articles I and II. The provision did not amend the treason clause, introduce a new crime, or provide additional criminal penalties for an existing crime” – as a prohibited bill of attainder would do.

Simply put, whether Trump is ineligible for future office because he aided or comforted insurrectionists is a matter for Congress to decide. In contrast, whether he is criminally liable for inciting such an insurrection is for a future criminal court to decide.

Thus, the objective to hold Trump accountable  could be accomplished by section 3 resolutions passed by a majority of either or both chambers – regardless of the outcome of his impeachment trial in the Senate. By concluding that Trump’s actions came within the ambit of that provision’s disqualification elements, Congress would be sending a powerful message to him, the American public and any future judicial officer considering his effort to avoid its consequence.

Conclusion

In the end, the use of a congressional resolution declaring a section 3 disqualification should obtain bipartisan support. What better final score could there be than that a Civil War amendment’s punishment for those who supported rebellion and slavery should be applied to a former president who aided and comforted insurrectionists carrying a Confederate flag into the nation’s Capitol while spewing the hateful rhetoric of white supremacists?

There you have it Democrats – don’t fall for this red herring that this resolution is a bill of attainder. That argument was addressed by the drafters of the 14th Amendment and considered and rejected at the time of drafting. Section 3 of the 14th Amendment simply addresses the qualifications clauses for office, and does not make any finding of guilt or impose any criminal penalty. It is not a bill of attainder.