Below is my column in Hill on the recent push to ban former President Donald Trump under the 14th Amendment in a no-confidence resolution. Various commentators and groups have called for dozens of Republican politicians to be expelled from office in the same way, including guidance on “disqualifying insurgents and rebels” under the 14th Amendment. Some even added a call to put the entire Republican Party on a list of domestic terrorism. Anger has overwhelmed reason again. The proposed use of the 14th Amendment raises serious constitutional concerns and could provide an overriding ground for judicial challenge if actually passed. In fact, Trump could prevail in court shortly before the 2024 presidential race.
Here is the column:
Following a vote suggesting roughly half the Senate have constitutional or regulatory concerns about the trial against the former President TrumpMembers discuss criticism as an alternative. I’ve previously supported a review resolution, but this is a review with a twist. Senator Tim Kaine would add yet another controversy to a number of constitutional issues by electively excluding Trump under the 14th Amendment. With the hasty impeachment and a retrospective trial against the Senate, the country needs another constitutional controversy, just like Wall Street needs another Reddit stock tip.
Criticism is not mentioned in the constitution because it is a resolution from the point of view of Congress. Such a declaration could allow for a bipartisan conviction. It is now also seen as a kind of shadow impeachment. A Senate trial could work to Trump’s advantage if it ends in an acquittal. For the first time, the House took advantage of an impeachment and failed to send the Senate any papers in support of its article. As before, the Senate can refuse to call witnesses and vote on the minutes, or lack thereof, which means a brief trial, and about half of the Senate rejects the case. It has led some members back to criticism as an effective substitute for conviction.
Part of the controversy over this rush to impeach is using a process solely for blocking elections. The Constitution relates to the process of deciding whether to remove “the President” and this leaves some of us with doubts about a retrospective process, while the ban is an optional penalty for removal. The Constitution limits the Senate’s power in impeachment proceedings to “impeachment and disqualification for holding and enjoying any office of honor, confidence, or profit in the United States”.
Retrospective studies remain a tight topic even for most scientists who have reached conclusions on both sides. Now, Kaine and others are suggesting that the Senate can avoid the need for the trial, but get the same result through a majority vote on criticism. It is about the 14th section of amendment, which prevents people from taking office if they have “committed uprisings or revolts” or “have given help or consolation to the enemy”.
Kaine said his decision of no confidence would make two determinations “that it was an insurrection and that President Trump gave help and comfort to the insurgents.” While this would be a workaround for an unreachable impeachment conviction, it would be defended as part of the authority of Congress over any citizen under the 14th Amendment.
This has never been used to disqualify a former president, and it is not clear whether Congress has the power to expel a citizen by majority vote. The Constitution applies to those who are determined to have committed treasonable acts. According to this theory, it would be relatively easy to disqualify someone from office and declare them a traitor, but it would be difficult to unblock them. In addition, it would also turn the burden of the super-major voting from protecting the defendants in impeachment into a barrier for those disenfranchised by Congress.
Kaine is open about his motivation for “an alternative that I believe would have a similar consequence” without trial and majority voting. But that’s why this tactic is so dangerous. The party in control could prevent dozens of their opponents from running for federal office. Some Democrats are now calling for such action against Republicans who challenged Joe Biden’s election. This is common in authoritarian countries like Iran, where leaders often exclude their opponents from office.
Kaine could stand up for Trump by invoking the 14th Amendment as an alternative to conviction in the process. Scientists have confirmed this view, and some insist that Congress has clear powers to expel Trump from office. Eric Foner, professor at Columbia University, says the 14th amendment is “very appropriate” and “would only require a majority in Congress”. Such statements leave little doubt that the motivation is to achieve the penalty of impeachment without the burden of conviction.
It would be a first impression for a court, but Trump would have a credible case. If he got his way, he could use the decision as a justification and perhaps reinforce his claims of being an establishment target. When the 14th Amendment was ratified, its applicability to those who swore allegiance to the Confederation or who fought for it was easy to see. A court would be wondering today whether Congress has such discretion to make such a determination or whether I think it is subject to judicial review.
The Framer had spoken out against the individual punishment imposed by Congress by banning assassinations. Such bills have been used in the UK to punish individuals through parliament rather than the courts. Years ago, I challenged one of the few successful Elizabeth Morgan Act assassinations that punished my client by disenfranchising him or her parental rights. This proposed no-confidence resolution would serve the same purpose of preventing punishment by popular vote.
Using the 14th amendment is too smart by half. Our frenzied politics blind many to what could be a dangerous precedent for opponents to be expelled from office. If many people in the past four years have been calling for blacklists and retaliation against someone who is “complicit” in Trump, such power would be ripe for abuse. There is an alternative, namely a no-confidence decision, which can find overwhelming support as a bipartisan condemnation rather than an evasion of impeachment. We can then leave the Constitution alone and leave Trump’s future to the electorate and history.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and has served as the last senior attorney pending impeachment in the Senate. He testified as an expert on the impeachment negotiations of Bill Clinton and Donald Trump. Follow him on Twitter @JonathanTurley