Donald Trump is charged with ‘inciting insurgency’ after a crowd of his supporters stormed the US Capitol, making him the first president in history to be charged twice. Some lawmakers now want to go a step further and ensure he can never run for office again.
But a conviction in the Senate, where a two-thirds majority is needed to convict Trump and possibly disqualify him from office, is likely to be an uphill battle, even under a government of Joe Biden.
This is where a little known provision comes into play in the 14th amendment. The amendment was ratified in 1868 and is best known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States. It used to include addicted and free black people.
But Article 3 of the amendment also provides a way for disqualification, stating that no person will hold office if they participated in an ‘uprising or uprising’ against the United States. When Congress in the past appealed to Section 3, it did so by a simple majority or 51 votes.
And while it was never used against a president, some Democrats are considering it following the U.S. Capitol on Jan. 6 when a crowd of Trump supporters clashed with federal police and broke into the building. The riot, which was intended to disrupt the election certification of President Joe Biden’s election college, resulted in five deaths.
In a letter to House Democrats on Jan. 10, Speaker Nancy Pelosi (D-California) said their views are ‘appreciated’ on Section 3 of the 14th Amendment as well as the indictment and the 25th Amendment. First-year envoy Cori Bush tweeted that she would pass a resolution suspending members of Congress who objected to the Electoral College, saying they violated the 14th Amendment.
The only problem is that the Constitution does not provide a guideline on how to invoke Article 3 of the 14th Amendment.
“It’s not automatic,” said Laurence Tribe, a professor of constitutional law at Harvard. Newsweek. “It only applies to the people who were guilty of insurrection or rebellion. And someone has yet to determine who those people were, or whether the president himself was guilty of the insurrection.”
Tribe said it would be unconstitutional for Congress to simply convict Trump, without a trial conviction, as some people have advocated. However, legislators may circumvent the probationary requirement by creating new legislation under section 5 of the 14th Amendment to provide a procedure for the application of section 3. The new legislation will have to pass in both chambers and be signed by the president.
“Those were terrible things,” Tribe said of the January 6 attack. “I’m sure Congress will want to consider legislation after the indictment is heard, to create a fair trial to apply Section 3 against all the people who were involved in this uprising.”
Michael Gerhardt, a law professor at the University of North Carolina, also said Newsweek that the House and Senate are likely to instruct how to use Article 3 when a new legislative session begins and members sit.
Other scholars, Gerhardt noted in an email, “further believe that Article 3 may also require a judicial finding, or a congressional finding, that the disqualified person has in fact participated in the prohibited misconduct. and some argue that Article 3 implicitly allows each chamber of Congress to render a vote by a majority vote in the chamber to which the member violating the section belongs. ‘
But the process can take years, as Daniel Hemel of the University of Chicago noted in an editorial The Washington Post. He also argued that “a law banning Trump from future officials passed by a simple House and Senate majority would raise serious constitutional questions.” The better way, according to Heaven, would be for Congress to institute judicial proceedings to disqualify insurgents.
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Representative Alexandria Ocasio-Cortez (DN.Y.) told ABC News that Congress should explore all possible ways to respond to the Capitol riot and hold political leaders accountable.
“This is not the 25th amendment or accusation, or, you know, our other paths through the 14th amendment,” she told anchor George Stephanopoulos. we must strive. I believe we need to take an overall approach. ‘
Pelosi also doubles her commitment to hold members of Congress and the president accountable for any role they may have played during a January 6 attack during a press conference.
“If it were found that members of Congress were complicit in this uprising, they might have acted on the basis of the crime in terms of prosecution,” she told reporters.
An accusation hearing in the Senate will likely only begin after Trump left office on January 20. Senate Majority Leader Mitch McConnell (R-Ky.), Who will soon become the upper-chamber minority leader when Georgia’s two Democratic senators are sworn in. in, issued a statement urging Congress to spend the immediate future “entirely focused on facilitating a safe inauguration and an orderly transition of power.”