With the Senate’s recent vote to acquit President Donald Trump, it’s worth reminding ourselves that an impeachment is, as author and historian Victor Davis Hansen describes, an “indictment process” and that the Senate is where the “trial” is actually held.
It’s also worth noting that a Senate trial should never have been held in the first place, as Trump had already left office and was, by this time, a private citizen. This fact had already been acknowledged by John Roberts, the chief justice of the Supreme Court, who refused to preside over the Senate hearings.
Under more normal circumstances, having the chief justice preside over a Senate impeachment trial provides for a constitutionally mandated balancing of powers between the legislative, judicial, and executive branches of our government. However, in this instance, we witnessed the legislative branch (Congress) acting in a judicial capacity, directly pitted against a private citizen.
That we saw our legislative branch’s powers arrayed against a private citizen—and without judicial restraint—should be frightening to all Americans. Even worse, this twisting of our Constitution took place in an environment where there was only a slim majority for Democrats in Congress.
Indeed, it is deeply unsettling that seven Republican senators—Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania—voted to convict Trump, given the constitutional ramifications.
Sasse, who has held himself up as a champion of the Constitution, attempted to frame his vote for impeachment as a defense of the powers of Congress:
“This trial is constitutional because the president abused his power while in office and the House of Representatives impeached him while he was still in office. If Congress cannot forcefully respond to an intimidation attack on Article I instigated by the head of Article II, our constitutional balance will be permanently tilted. A weak and timid Congress will increasingly submit to an emboldened and empowered presidency. That’s unacceptable. This institution needs to respect itself enough to tell the executive that some lines cannot be crossed.”
Using the excuse of protecting congressional powers at the expense of protecting the rights of private citizens and upholding our Constitution reveals the true motives of these Republican senators.
Here was a chance for the GOP to stand united and send a message to Democrats that upholding the Constitution takes priority over personal wishes and political theater. Instead, these seven Republicans chose to engage in political grandstanding. Sasse, who now faces potential censure from the Nebraska GOP next month, inadvertently made a strong argument for repealing the 17th Amendment, which provides for the direct election of senators by voters rather than selection—and recall—by state legislators.
Now, it seems that many on the left would like to see the 14th Amendment employed to prevent Trump from ever seeking office again—specifically in 2024.
The 14th Amendment focuses primarily on citizenship and the rights of citizens. However, Section 3 of the 14th Amendment, which was passed in the wake of the Civil War, bars former officers of the United States who “engaged in insurrection or rebellion” from seeking public office. Section 3 was enacted for the purpose of excluding former Confederate officers from holding federal and state office.
However, it’s not entirely clear that Section 3 even applies to a president of the United States. The language of the section specifically names anyone who served 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 any State.” While members of Congress and lower federal and state offices are listed, the president is specifically omitted.
Additionally, Trump was just acquitted of the impeachment charge of inciting an insurrection by the Senate in a 43–57 vote (67 votes are required for a guilty verdict). And Section 3 doesn’t specifically state how Congress could enforce the penalties contained within, although it does state that a ban can be lifted through a two-thirds vote.
Senate Majority Whip Dick Durbin (D-Ill.), who voted to convict Trump, highlighted the lack of clarity, noting that the “14th Amendment is not explicit on how you determine whether someone participated in an insurrection.”
“If they had been convicted of that in a court of law, then I can understand how you can use it as a predicate for prohibiting people from running for office. But there is a real serious question, if that conviction has not taken place, whether the Congress can have a finding, or the Senate can have a finding that they are guilty of insurrection and whether that’s sufficient,” Durbin said.
Some proponents of using Section 3 look to Section 5 of the 14th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Taking Sections 3 and 5 in concert has led some in Congress to promote the idea that a simple majority of the House and the Senate, along with a presidential signature, would be all that’s required to ban specific individuals—in this case, Trump—from seeking office in the future.
However, Article I, Section 9, Clause 3 of the Constitution specifically prohibits Congress from passing any “bills of attainder,” which is a legal term for using a legislative act to declare a specific individual guilty of a crime. In other words, Congress cannot simply legislate Trump’s guilt.
The writers of the Constitution took this matter very seriously and went so far as to prohibit states from passing any “bills of attainder” under Article 1, Section 10. This double prohibition reflects the underlying concept of due process whereby it is the judiciary, not legislative bodies, that determines the guilt or innocence of a citizen.
Some have argued that the 14th Amendment supersedes the Constitution’s original prohibition on “bills of attainder” when it comes to the specific matter of insurrection, but that is far from being clarified, and again, Trump was acquitted on this specific impeachment charge. Nor does the 14th Amendment define how it would be determined that someone participated in an insurrection.
Regardless of how the 14th Amendment matter is framed, the passage of legislation by a simple majority of our legislative branch barring President Trump from seeking future office would be subject to material constitutional questions and concerns—and there would be immediate legal arguments that any such law violates the bill of attainder clause.
Additionally, prior to the passage of any such legislation, proponents of the legislation would be subject to a filibuster, whereby a Senator objects to a specific piece of legislation. To override this objection, the Cloture Rule requires 60 votes to end debate on the legislation, allowing for a maximum of 30 hours of additional debate. A vote then takes place on the actual measure the filibuster is seeking to block.
In other words, the “simple majority” so often thrown about in media articles would, in practical effect, be subject to a 60 vote threshold in the Senate. But this did not stop Speaker of the House Nancy Pelosi from soliciting views from her Democrat colleagues in a Jan. 10, 2021 letter which noted that “Your views on the 25th Amendment, 14th Amendment Section 3 and impeachment are valued as we continue.”
There has also been some discussion of employing the use of a congressional resolution in place of actual legislation.
In a Feb. 15 article, Gerard Magliocca, a professor at Indiana University’s School of Law, wrote: “Congress could adopt a concurrent resolution making factual findings about the insurrection and expressing its view that the former President is now ineligible to serve under Section Three. This would be a non-binding statement of Congress’s opinion that could be cited” in future litigation.
A concurrent resolution declaring Trump as ineligible to serve is not binding and would have no “force of law,” but it has been raised by Democrats as a tactic to cast a “cloud of illegitimacy” over a future presidential run by Trump.
Another avenue being discussed by Democrats is the passage of legislation that would establish the judicial handling of Section 3 claims. As Magliocca puts forth, “these claims could be assigned to federal court and even to a specific court.” Additionally, according to Magliocca, “Congress can determine the standard of proof that should apply in a Section Three case.” In effect, this type of legislation being considered would “authorize federal prosecutors to bring a civil action against anyone who pursues public office in violation of Section 3.”
Daniel Hemmel, a professor at the University of Chicago Law School, notes: “The new law could authorize federal prosecutors to bring a civil action against anyone who pursues public office in violation of Section 3. Thus if Trump seeks the White House in 2024, the Justice Department could go to court to disqualify him.”
Once the action was brought, the matter would likely be expedited to the Supreme Court. By employing the use of the judiciary, this process would avoid the “bill of attainder” issues but would be subject to an inherently more lengthy process and might not even begin until the point at which Trump declared his candidacy.
Regardless of how the various scenarios ultimately play out, it is unlikely that Democrats will simply walk away from further efforts to prevent Trump from seeking office in 2024. And in their efforts to do so, they will continue to contort the boundaries of our Constitution in their unbridled zeal.
Jeff Carlson is a regular contributor to The Epoch Times. He is a CFA Charterholder and worked for 20 years as an analyst and portfolio manager in the high-yield bond market. He also runs the website TheMarketsWork.com and can be followed on Twitter @themarketswork.