14th Amendment gains attention amid Trump impeachment efforts. How does it work?
Impeachment and the 25th Amendment have been hot topics following last week’s attack on the U.S. Capitol by a mob in support of President Donald Trump.
But a little-known section of a Reconstruction-era amendment is gaining attention as another possible avenue for holding the president accountable for the siege, which many lawmakers from both parties have blamed, at least in part, on the president’s rhetoric surrounding the election.
Trump — who has repeatedly made unfounded claims about voter fraud in the 2020 presidential election — spoke to his supporters at a rally Wednesday and told them to march on Capitol Hill.
Rioters then stormed the Capitol as Congress was certifying the Electoral College results. Five people have died as a result of the attack, including Capitol Police officer Brian Sicknick.
Now, a majority of Democrats, and a small but growing number of Republicans, are calling for Trump to be removed from office via the 25th Amendment, or impeachment in the House and subsequent conviction in the Senate. Both paths, however, are unlikely to end in his ouster.
Invoking the 25th Amendment would require support from a majority of Cabinet members and Vice President Mike Pence, who has not expressed support for doing so. Conviction and removal would require a two-thirds majority in the Senate, meaning a significant number of Republicans would have to support the move even if all Democrats vote to convict.
But some experts have brought up Section 3 of the 14th Amendment to the U.S. Constitution as another way to hold Trump responsible.
What is Section 3 of the 14th Amendment?
The 14th Amendment, ratified in 1868, granted citizenship to everyone “born or naturalized in the United States,” including formerly enslaved people. It also provided citizens equal protection under the law.
Tucked in the amendment is Section 3, which gives Congress authority to bar certain public officials who take part in insurrection or rebellion from holding office.
“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,” the section reads.
The section was aimed at former Confederates as a way to prevent them from holding office after the Civil War, though it doesn’t specifically name them.
“The language in Section 3 applies to anybody who has made an oath to the Constitution and then violates that oath,” Eric Foner, an award winning historian and professor at Columbia University, told The Washington Post. “It’s pretty simple.”
House Democrats on Monday introduced an article of impeachment with more than 200 cosponsors against Trump that cites the amendment as an argument for impeaching him on the grounds of engaging in “high crimes and misdemeanors by inciting violence against the Government of the United States.”
Additionally, Rep. Cori Bush, a Democrat from Missouri, cited the 14th Amendment in a resolution that aims to expel lawmakers who voted against certifying the 2020 election results, writing in a statement that she believes they are “in breach of their sworn Oath of Office to support and defend the Constitution.”
Expelling lawmakers, however, is extremely rare. .
And Michael Klarman, constitutional law scholar at Harvard, told ABC News that using Section 3 of the 14th Amendment to expel lawmakers who questioned the legitimacy of the election would be a “real stretch.”
How could it apply to Trump?
Experts also told The Post that using the 14th Amendment to terminate Trump’s presidency is likely impossible as Section 3 doesn’t include a “mechanism for removal.”
“The idea is this provision itself ought to, ipso facto, disqualify the president from continuing to hold office,” Stephen Vladeck, a constitutional law expert at the University of Texas, told WFAA. “I don’t think anyone ever thought this would be used to actually oust a sitting president who has been serving for the better part of his entire term.”
But it could be a way to prevent Trump — who has floated a 2024 bid for president — from getting on the ballot if he were to try to seek office again, Gerard Magliocca, an Indiana University law professor who has studied the section, told CNN.
“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,” Magliocca told CNN. “So it’s a way of thinking about this in a more of a compromise kind of fashion.”
So how would that work?
Congress would vote by a simple majority that Section 3 applies, and the courts would likely have to get involved, Magliocca told The Post, saying it’s “not just something that Congress can do”
Kate Shaw, ABC News legal analyst and Cardozo Law professor, agreed courts would likely get involved.
“I think it would require Congress to pass a law ... saying that what happened on Jan. 6, before it and around it, was insurrection under the Constitution and thus (Trump) is disqualified,” Shaw said, per ABC. “They would have to make some findings about why this qualifies as insurrection. What does insurrection mean in 2021?”
This story was originally published January 12, 2021 at 1:48 PM with the headline "14th Amendment gains attention amid Trump impeachment efforts. How does it work?."
