Protestors on the morning of Jan. 6, Washington, D.C. Credit: Paul Glastris

Donald Trump has for years been obsessed with disqualifying other presidential candidates from running. He began his political career by claiming that Barack Obama was ineligible because the Democrat was supposedly born in Kenya. That flowed seamlessly into challenging Sen. Ted Cruz (born to a U.S. citizen mother in Canada), then to Sen. Marco Rubio (born in Florida to lawful permanent residents). Along the way, he randomly tweeted that Hillary Clinton “shouldn’t be allowed to run” against him in 2016 (because, I guess, emails) and in 2020 moved on to the same claim about former Vice President Joe Biden (because…because…because, well, oh, who the hell knows?).

Disqualification is now the major goal of the last-minute impeachment effort; if two-thirds convict the president in the Senate, a simple majority of the Senate may then render him also “disqualif[ied] to hold and enjoy any Office of honor, Trust or Profit under the United States.” (State office, say in his new refuge in Florida, is not covered.)

It would be too simple to put this drive down to vindictiveness. After the “find me some votes” phone call to Georgia Secretary of State Brad Raffensperger and the January 6 assault on the Capitol, there are good reasons to believe that Trump should be excised, to the extent possible, from the body politic. If his name never appears on another ballot, the world will be a better and safer place.

But if that doesn’t happen, is there another way to skin the polecat? Some recent work by prominent scholars suggests that Section 3 of the Fourteenth Amendment, the “insurrection or rebellion” clause, may offer one path.

To begin with, impeachment has pitfalls: The Senate trial, it’s now clear, will stretch well beyond Trump’s exit from office. Despite what some commentators have argued, that fact is constitutionally irrelevant. As University of Texas law professor Stephen Vladeck points out, impeachment has historically been used in Britain and the U.S. against officials who are out of office but who have committed official wrongs. Between 1788 and 1795, the British Parliament impeached and tried Warren Hastings for alleged maladministration as de facto governor-general of Bengal—even though Hastings had left office three years before the impeachment began. (Hastings was acquitted, seven years later, in part because members of the House of Lords believed the ordeal had gone on too long.) In the U.S., Secretary of War William Belknap resigned in March 1876, hoping to avoid impeachment for corruption; the House impeached him, nonetheless. The Senate then debated whether it could still try him and voted yes. (Belknap, too, was acquitted even though a majority voted against him–slightly less than the required two-thirds.) No president has been tried after leaving office—but the reasons for impeaching a chief executive are even stronger than for impeaching a Cabinet officer.

The option of post-impeachment disqualification also suggests strongly that post-office impeachment is available–in part, to ensure that those who have violated their oaths and left office should not be given a second chance. Trump certainly fits that bill.

But the chances of conviction and disqualification are hard to assess. For one thing, the passage of time may make Republicans even more eager to put the Trump era behind them. For another, a Senate trial will of necessity be limited to considering the single Article of Impeachment passed by the House. That Article concerns only Trump’s “efforts to subvert and obstruct the certification of the results of the 2020 Presidential election” (e.g., the Raffensperger call) and his speech to the “Stop the Steal” rally.

But after Trump is gone, investigators will have access to government records and testimony of past and future federal employees and Trump associates. It’s pretty likely that, weeks or months after any Senate trial, they may uncover evidence that the president tacitly or explicitly encouraged the violence between the election and the rally. Beyond that, I suspect, are crimes we can’t entirely imagine—some of them flagrant financial crimes and others, like family separation, actual crimes against humanity. This material won’t be part of a Senate trial. And the limited evidence offered will offer an escape to any Republican senator who, as tempers cool, wants to avoid being marked as anti-Trump.

Beyond that, evidence will likely emerge that others in the administration, in the federal law enforcement and national security bureaucracies, in state governments, and even in Congress itself connived at or even aided the attack on the Capitol. Impeachment of Trump alone, even if successful, does nothing to hold them to account.

So here’s a possible second bite at the Never Again Apple, proposed by Yale law professor Bruce Ackerman and Indiana University professor Gerard Magliocca in a January 11 Washington Post op-ed: Section Three of the Fourteenth Amendment. That provides that “[n]o person shall . . . hold any office, civil or military, under the United States who, having previously taken an oath… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Does that cover Trump? I think the existing evidence suggests it does; and more is on the way.

God knows insurrection was in evidence on January 6, among the weapons, signs, dangling nooses, chants of “Hang Mike Pence!” and Confederate flags. And those flags bring us to the nub of the Section 3 debate. The Fourteenth Amendment, written in 1866 and finally approved in 1868, was a comprehensive attempt by the victorious North to ensure that the Southern “slave power” was not restored in the reunified nation. Until 1861, the slave power and its allies had called most of the shots in all three branches of the federal government. After Appomattox, white Southerners freely confided in Northern journalists their intention to return with their regional dominance intact. One means of blocking this, Northern thinkers agreed, was to disqualify the Confederate leadership—men who had served federal office and sworn to support the Union, then tried to overthrow it by force. This covered Confederate “president” Jefferson Davis (a former U.S. Senator and Secretary of War), “vice-president” Alexander Stephens (former House member), and hundreds of other former legislators, judges, military officers, or federal executive officials who had betrayed their oaths. After Lincoln’s assassination, Andrew Johnson had sought to rehabilitate this leadership (and perhaps use it as a power base for a White House run in 1868) using his pardon power. Congress interposed Section 3 to block this move.

The old-time Southern liberal in me would be tickled to death if this penalty were now to be applied to Trump, whom Rep. Cori Bush, the Missouri Democrat, called America’s “White Supremacist in Chief”—and to his helpers and enablers, whoever they are. As I wrote last week, the riot was clear evidence that the heirs to those who created antebellum slave power seek to rule the country again—by politics if possible, by cheating if not, and by force, if need be.

How would disqualification work? In an interview, Magliocca (also the author of an eerily timely new article on Section 3) suggested that Congress could, either by passing a statute or adopting a resolution, impel the Attorney General to go to court and seek a “declaratory judgment” that Trump (or Trump and helpers) are disqualified under Section 3. The issue would then go to court. He analogized this mechanism to the now-forgotten Section 10 of the Voting Rights Act of 1965, which concerned state poll, or voting, taxes. The Twenty-Fourth Amendment outlawing poll taxes was passed in 1962—but only in federal elections (a compromise with Southern segregationists). Three years later, after the carnage at the Edmund Pettis Bridge, Congress in the text of the new Voting Rights Act “found” that state poll taxes also violated the federal right to vote—and “directed” the Attorney General to bring a declaratory judgment suit to persuade a federal court to agree. (That case never came to fruition because the Supreme Court, a year later in 1966, struck down the poll tax in a case brought by two voters.) A statute could “find” Trump (and any co-conspirators) disqualified and throw the ball to the Biden Justice Department. However, a statute would require Biden to sign it, which he may be loath to do. Magliocca pointed out that almost the same result could be achieved with a “concurrent resolution” of both Houses. That needs no presidential signature and would simply declare Congress’s opinion and encourage the AG to enforce it. Such a resolution could also cover others found to have been part of a conspiracy against the government, disqualifying them from any political office—and unlike disqualification after impeachment, the disqualification would also bar the conspirators from state office.

Would that work? The politics of this are beyond my remit. But, of course, no constitutional mechanism can defend a self-governing republic that loses its nerve. That’s what happened during and after Reconstruction. Slowly, in the 1870s, Northern opinion began to be clouded by Lincoln’s “mystic chords of memory,” until the white public allowed the re-creation of a “reunified” (meaning white) America–at the price of restoring traitors to power and betraying the freed slaves. The disqualification remained in place for most of these leaders only until 1872. Many resumed their careers in politics; amnesty was made available for all the rest in 1898. (For Davis and General Robert E. Lee, restoration did not come until the 1970s.)

Generations of Black Southerners paid the price for this feckless White act of “healing.” So, count me among the non-healers.

Section 3 has an appeal, but let’s note that the power of legal proscription is a fearsome weapon to place in political hands. It’s revealing that, after the Confederate generation died out, Section 3 has been invoked only once—not against a powerful rebel leader but the leader of a feared political minority. The target was Victor Berger, the first Socialist elected to Congress. He was excluded from the House of Representatives under § 3 because he had been convicted of opposing the war effort.

Consider the sobering conclusion of Magliocca’s article. “On the question of how to mend divided societies, Section Three is a cautionary tale,” he writes. . . . “[S]weeping Section Three relief did not fulfill the goal of Reconstruction by inducing reciprocal magnanimity to the freed slaves. In the end, neither the clenched fist nor the open hand brought justice for all.”

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.