Block Trump from office with the 14th Amendment's aiding an insurrection exclusion

Taking Senate Republican leader Mitch McConnell at his word, the buck for former President Donald Trump’s incitement of the U.S. Capitol mob should stop somewhere — just not in his house.

“He didn’t get away with anything yet,” McConnell said on Saturday evening, after enough Republican senators voted to acquit the former president of an impeachment charge. “We have a criminal justice system in this country. We have civil litigation.”

Stipulated. But we still have a Congress, too.

McConnell made the case that Trump was guilty of an offense punishable by more than a Senate floor speech. The upshot of the top Senate Republican’s remarks is that he believes Trump is the but-for cause of the Jan. 6 insurrection, whose participants assaulted the Capitol “in his name,” carried “his banners,” hung “his flags” and screamed “their loyalty — to him.” His assessment was plain: “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day.”

Options beyond censure, conviction 

The question was left open, though, of who is responsible for penalizing the provocation. House Speaker Nancy Pelosi dismissed the idea of a congressional censure: “We censure people for using stationery for the wrong purpose. We don’t censure people for inciting insurrection that kills people in the Capitol.”

McConnell’s suggestion that district attorneys’ offices could take it from here if they choose is accurate — but it also reveals his perspective that Congress’ work is finished in the meantime.

It shouldn’t be. By the GOP’s timid standards, McConnell’s comments and the surprising seven Republican votes for conviction were an authorization for use of political force against the former president. Now, more than at any point in the previous four years, there appears to be a window for bipartisan accountability on Capitol Hill.

If Congress lacked accountability mechanisms other than impeachment or censure, it’d be one thing. But it’s not wanting for options.

One of them is enforcement of Section Three of the 14th Amendment, which states that no state or federal office holder “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.” 

In other words: No second chance to place your hand on the Bible and repeat after the judge if you were an insurrectionist the first go-round. This novel idea was floated by Sens. Susan Collins, R-Maine, and Tim Kaine, D-Va. It merits widespread consideration now, given how it meshes with the emerging Republican position on Trump’s culpability for Jan. 6 and Congress’ capability for responding to it.

The idea moots three Republican concerns: procedural, constitutional and political.

First, is there a procedural problem? No. Forty-four Senate Republicans voted that Trump’s most recent impeachment trial was unconstitutional, but a Section Three vote is entirely different. There is no constitutional roadblock to taking up congressional enforcement of a constitutional provision itself.

Acquitted:Shared identity and fear of Trump kept most Republicans in line

Second, is the idea constitutionally unassailable? Yes. Section Three, about aiding an insurrection, relates to a judgment of Congress, not a criminal court. The House and Senate could pass a resolution that states the facts about Trump’s conduct leading up to and on Jan. 6, for example, and concludes that Section Three disqualifies him from holding office in the future.

The implications of this would be political, not criminal. It would allow state officials to call into question the legitimacy of  a hypothetical Trump campaign or complicate his ballot access. Congress could approve a similar measure that permits the attorney general to render an opinion about an office seeker’s eligibility under Section Three. These are not judicial branch judgments originating from the legislative branch, and do not create constitutional problems.

Trump is not a cable package

And finally, is this politically feasible? It is. Congress already voted on language to bar Trump from future office. Such a section was included in the House’s impeachment article.

Seventeen Republicans voted in favor of it: 10 in the House; seven in the Senate. That should represent a floor, not a ceiling, for Section Three legislation. Only three more Senate Republicans would need to support the measure for the chamber to surpass a required 60-vote threshold to consider legislation of this type.

Congressional action on Section Three is the natural endpoint of Republicans’ distinguishing between Trump’s legacy and Trump the person. For the entirety of his presidential term, most Republicans subscribed to him as if he were a cable package. Many just wanted the tax reform. But to remain in his good graces, they supported him not only for signing legislation.

Trump's two impeachments:Republicans can't be trusted with our democracy

They also signed up for the international and science bundle. They defended him through the Russia investigation and Ukraine impeachment, the bullying of governors and pushing of pseudo-medicine during the coronavirus pandemic, “the tweets” and “very fine people” and, ultimately, “stop the steal.” This was the extraordinary price for Republican governance.

Those days can end soon. As presidential hopeful and former South Carolina Gov. Nikki Haley said to Politico: “Take the good that he built, leave the bad that he did, and get back to a place where we can be a good, valuable, effective party.”

Congressional Republicans should make the distinction now — and not just “leave” the bad but punish it. “Good” political parties keep their houses in order. 

Chris Deaton, a policy and communications strategist for Protect Democracy, is a former aide to Sen. Dan Coats, R-Ind., and Reps. Geoff Davis, R-Ky., and Tom Latham, R-Iowa, and a former deputy online editor of The Weekly Standard. Follow him on Twitter: @cgdeaton