Last Updated on February 17, 2022
As the more zealous Democrats in the US Senate prepare for the second impeachment trial of President Donald Trump, who is no longer in office, Constitutional scholar Jonathan Turley warns of the consequences in using the 14th Amendment’s disqualification clause as an “compromise” alternative to an impeachment conviction.
US Sen. Tim Kaine (D-VA), has floated the idea of aborting the Democrats’ quest for an impeachment conviction and, instead, pursuing a censure resolution in tandem with the employment of the 14th Amendment’s disqualification clause, thus preventing President Trump from ever holding elected office again.
The 14th Amendment, Section 3, reads:
“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.”
The employment of the 14th Amendment’s disqualification clause would, if adopted by Congress, prohibit President Trump from being elected to office. But this action would also open a Pandora’s box in the issue of the pre-disqualification of political candidates.
In the censure resolution floated by Kaine, two issues are addressed. First that the events of January 6, 2021 at the US Capitol constituted an “insurrection” and second, that President Trump “aided and abetted” that insurrection in his speech rhetoric.
These declarations, if ratified in a censure vote, would allow Congress to pre-disqualify President Trump – now a private citizen – from elected office under the 14th Amendment.
— The Hill (@thehill) January 31, 2021
“This has never been used to disqualify a former president, and it is not clear Congress has carte blanche authority to bar a citizen from office by majority vote,” Turley, a professor at the George Washington University Law School, said in a recent opinion piece.
Turley cited Kaine’s openness to achieve the effects of an impeachment conviction in the pre-disqualification of any future electoral bid made by President Trump, a disqualification that would come without the unattainable conviction vote in the Democrat-controlled Senate. Forty-five Republicans have indicated that the supermajority threshold needed for conviction will not materialize.
“But that is why this tactic is so dangerous,” Turley warns. “The party in control could bar dozens of its opponents from running for federal office. Some Democrats are now demanding such action against Republicans who challenged the election of Joe Biden. This is common in authoritarian countries such as Iran, where leaders often bar their opponents from office.”
Sen. Chris Coons: "What Senator Kaine is talking about is a censure resolution that would also specifically include the elements of the 14th Amendment that lead to disqualification from future office." https://t.co/amEncdNSiP pic.twitter.com/o0odqhaKgH
— The Hill (@thehill) January 28, 2021
Turley calls out the consequences for weaponizing the 14th Amendment purely for political purposes, intimating that doing so would lead to the United States government devolving into a banana republic.
“Our raging politics blinds many to what could be a dangerous precedent of barring opponents from office, Turley wrote. “When many people call for blacklists and retaliation against anyone ‘complicit’ with Trump in the last four years, such a power would be ripe for abuse.”