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Impeaching lays groundwork for disqualification — even without a conviction

The second impeachment is coming.

What’s the point, you may ask, if the Senate can’t muster a two-thirds vote to convict Trump, notwithstanding report of a rising anti-Trump Senate Republican tide.

One justification we will be hearing a lot: A second impeachment writes an indelible record for history. A president’s unprecedented misconduct — fomenting violence against another branch of government — should be met with an unprecedented response. Democracy requires accountability.

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But there is also a little-mentioned consequence of impeachment, even if the Senate does not convict Trump and bar him from holding another office: This impeachment would lay the groundwork for future action to disqualify Trump under the 14th Amendment.

Section 3 of that provision states:

No Person shall . . . hold any office . . . under the United States, or under any State, who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection . . . or given aid or comfort to the enemies thereof. 

Mr. Trump easily satisfies the first element for disqualification, having taken his oath of office. An impeachment for inciting an insurrection powerfully declares the second.

If there is a Congressional determination that he incited a violent assault on the government, as the Jan. 11 Impeachment Article alleges, that dots the “i” on insurrection-engaging.

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The 14th Amendment was adopted after the Civil War. Section 3 was aimed at former state or federal officers who acted to support the Confederacy. As Justice Reade of North Carolina’s Supreme Court wrote in 1869, the idea was “that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.”

What is the evidence that Trump “engaged in insurrection?” Webster’s defines the term as “an act or instance of revolting against civil authority or an established government.”

Trump invited his supporters to Washington for “wild protests” of Congress certifying the election. Immediately before a mob of them violently broke into the Capitol, he spoke to them, saying:

  • “We will stop the steal”
  • “We're going to walk down to the Capitol”
  • “You'll never take back our country with weakness. You have to show strength and you have to be strong.”
  • “When you catch somebody in a fraud, you are allowed to go by very different rules.” 

During the break-in, Trump tweeted: “Mike PenceMichael (Mike) Richard PenceCancel culture comes for the moderates Trump pressed DOJ to go to Supreme Court in bid to overturn election: report Schumer calls for DOJ watchdog to probe alleged Trump effort to oust acting AG MORE didn’t have the courage to do what should have been done to protect our Country and our Constitution.” Rioters with phones in the Capitol building were looking for the vice-president, saying that they would hang him from a tree. Five people, including a Capitol policeman, died in the assault on our democracy.

Precedent tells us that under Section 3, simple words can disqualify an officeholder. In 1919 and 1920, applying Section 3, Congress refused to seat elected socialist Victor L. Berger for having “given aid and comfort” to Germany during World War I by publishing a manifesto opposing World War I.

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Trump’s words supporting an insurrection on Jan. 6 had far more immediate and evident effects. 

Significantly, it takes further action following an impeachment based on an officeholder’s engaging in insurrection to disqualify him. Following impeachment, if the Senate does not convict, then Trump’s disqualification might only arise if he runs again. In that event, states have the power to restrict access to their ballot based on constitutional disqualifications such as Section 3.

A majority of Americans now appear to desire the Senate to convict Trump — which would open the door to an immediate Senate vote to bar him from future office. But if that does not happen, there’s a silver lining. Disqualifying Trump now could add real — and possibly unnecessary — divisive effects at a time when we have already experienced violence. We would suffer those effects without knowing that Trump would ever have actually run for office again.

But if, despite growing party opposition, he does run, the impeachment could be cited in 2023 in support of states’ Section 3 claims to keep him off their ballots. In itself, that is not a sufficient reason to impeach Trump — but those who cherish the rule of law and do not want to see history repeat may come to appreciate it.

Dennis Aftergut is a former federal prosecutor and Supreme Court advocate, currently a Lawyers Defending American Democracy steering committee member.