Democrats Pursue Broad Effort To Bar Trump From The Presidency Under 14th Amendment

Topline

House Democrats introduced legislation Thursday—sure to never make it out of a GOP-led House that takes over in January—that would bar former President Donald Trump from being president again under the 14th Amendment, part of a broader effort by Democrats and activists to keep Trump from holding future office through a little-used constitutional provision as he launches his 2024 campaign.

Key Facts

Section Three of the 14th Amendment states no one can serve in Congress or “hold any office, civil or military” who has “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.”

More than 40 House Democrats introduced a bill Thursday that would disqualify Trump from office under that statute based on his trying to overturn the 2020 election and “mobilizing, inciting, and aiding” his supporters who attacked the Capitol building on January 6, 2021, which the bill argues constitutes engaging in an insurrection.

The bill points to Section Five of the 14th Amendment as giving Congress the power to enforce Trump’s disqualification under the amendment, but the Congressional Research Service notes that it’s possible Trump could also be barred from office without Congress and through lawsuits or criminal charges being brought against him instead.

The Justice Department could charge Trump with treason or engaging in an insurrection, which would likely result in him being prohibited from holding office if found guilty, the CRS notes, and charges against him could also give lawmakers more leverage to successfully use the 14th Amendment against him in Congress.

A rival candidate or voters could also try suing Trump and asking a court to bar him from taking office, the CRS notes, though it would be up to judges or the Supreme Court to determine if that strategy would succeed.

Advocacy groups Free Speech for People and Mi Familia People have launched a campaign asking Secretaries of State and other elections officials to declare Trump is disqualified from being elected as president in their state’s election, which could keep Trump from being president if enough battleground states decided to keep him off the ballot to affect the election results.

Big Number

51%. That’s the share of respondents in a Quinnipiac poll released Wednesday who believe Trump should be disqualified from holding office under the 14th Amendment, after he called for “terminating” the Constitution in order to reverse his 2020 election loss.

What We Don’t Know

Whether any efforts to keep Trump out of the White House through the 14th Amendment would actually succeed. It’s highly unlikely the bill introduced Thursday can make it through Congress, given Republicans are about to regain control of the House and Democrats would need 60 votes in the Senate to pass it. Any lawsuits over the issue would be up to the courts to decide, including potentially the Supreme Court, which has a 6-3 conservative tilt and thus may be unlikely to rule against Trump. No states have yet said they’re willing to go along with calls to disqualify Trump from state elections, and the DOJ is still investigating Trump’s attempts to overturn the 2020 election, so it remains to be seen whether that will result in any charges.

Surprising Fact

There’s still some debate over whether the 14th Amendment actually applies to the office of the presidency, which Trump could use to defend himself if he faces lawsuits calling for his disqualification. The amendment doesn’t specify that it includes the president, like it does with members of Congress or state legislatures, so critics have argued it doesn’t apply and the president can instead only be removed from office by being impeached. Indiana University law professor Gerard Magliocca noted in a paper on the 14th Amendment that senators who debated the amendment when it was added in the 19th century suggested the president was covered under it, however, which anyone suing Trump could likely point to as justification he can be disqualified.

Key Background

Section three of the 14th Amendment was initially passed in the post-Civil War era as a way of holding former Confederates accountable and keeping them from holding office. Largely dormant since then, the amendment has more recently gained attention on the left in the wake of the January 6 attack on the Capitol building, and efforts to bar Trump under the amendment mark the latest in a string of efforts to punish officials on the right who supported the riot. Free Speech for People previously filed lawsuits to bar Reps. Madison Cawthorn (R-N.C.) and Marjorie Taylor Greene (R-Ga.) from the ballot in the midterm elections, which both failed in stopping them from running. Cawthorn ultimately lost his primary race anyway, and an appeals court ruled against him on the 14th Amendment after he lost, which could make it easier for other candidates to have their candidacy challenged in the future. In New Mexico, a court did disqualify Otero County commissioner Couy Griffin from holding office under the 14th Amendment after he participated in the January 6 riot. That marked the first time anyone had been removed from office under the provision since the Civil War era, Noah Bookbinder, president of ethics watchdog CREW, told NPR.

Tangent

In addition to the 14th Amendment, Trump critics have also hoped the ex-president could be kept out of the White House based on the DOJ’s investigation into whether he violated federal law by taking federal documents with him to his Mar-A-Lago estate. One of the federal statutes that Trump’s being investigated under, which concerns the mishandling of federal documents, states that anyone who violates it should be barred from holding office. While it’s likely that Trump will be sued under that statute if he’s charged with it, experts are conflicted on whether it would work in keeping him from becoming president again. The Constitution doesn’t say Americans can’t be president if they’ve been convicted of a crime, and the Constitution would likely override the federal statute, experts suggest.

Further Reading

House Democrats introduce legislation to bar Trump from office under 14th Amendment (The Hill)

The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment (Congressional Research Service)

Candidates Can Be Disqualified For Being ‘Insurrectionists,’ Court Rules In Madison Cawthorn Lawsuit (Forbes)

A New Mexico judge cites insurrection in barring a county commissioner from office (NPR)

Marjorie Taylor Greene Can Stay On Midterm Ballot Despite Jan. 6 Allegation, Court Rules (Forbes)