Two U.S. senators, a Democrat and a Republican, are working to gain support for a vote condemning former President Donald Trump, as it appears the Senate is unlikely to convict him of the article on the accusation of the House does not.
While a majority of the Senate voted this week to proceed with a trial, the 55-45 vote was far less than the two-thirds that would be needed to convict. This gave rise to sens. Tim Kaine, D-Va., And Susan Collins, R-Maine, to propose a vote to condemn the former president as an alternative punishment.
Kaine said approving the no-confidence motion could prevent Trump from taking office, but legal experts are not so sure.
A disapproval by one or both houses of Congress has no legal force if the person convicted is not a member of Congress. The Constitution expressly gives Congress only the power to punish its own members, except for the power of accusation. A vote to condemn someone in the executive or legislature would therefore only express the non-binding “sense of” Congress.
The notion that a censorship could prevent Trump from holding the future federal office is based on how Cain and his supporters read Section 3 of the 14th Amendment, which states: ‘No one shall be a senator or a representative in Congress, or elect President and Vice-President, or hold any office, civil or military, under the United States, or under any State, 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 a state, to support the Constitution of the United States, rebellion or rebellion against the same shall be involved. ‘
Strange as it may seem, Professor Steve Vladeck of the University of Texas School of Law in Austin said there is an ongoing legal question as to whether the president is in fact “an officer of the United States.” This phrase occurs frequently in law, but the courts have yet to prejudice the meaning when it comes to the person at the top of the executive branch.
Assuming the phrase does apply to the president, the Senate would pass a no-confidence motion declaring Trump an insurgency, which could cause a state to block him from voting if he decides to to perform in 2024. Trump can then sue, and the courts will have to decide the case.
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Alternatively, Trump could be allowed to vote in a state and sue an opponent for dismissing him, which would also land the case in the courts.
Vladeck suggests that because there are so many unknowns, the wisest way would be for both houses of Congress to approve a motion of no confidence to give it extra effort.
Unlike a vote to convict Trump in an indictment, a vote to convict him will require only a simple majority, and that is another reason why some senators are likely to succeed. But for now, Senate Majority Leader Chuck Schumer is focused on the article on the House indictment.
“There will be a trial,” the New York Democrat said, “and the testimony against the former president will be presented live for the country and for each of us to see again.”
Julie Tsirkin contributed.