Use 14^th Amendment to bar Trump from office

During the first 2020 debate between President Donald Trump and chal­lenger Joe Biden, mod­er­a­tor Chris Wallace asked Trump whether he would tell the Proud Boys to “stand down.” Trump direct­ed his answer to the right-wing mili­tia: “Proud Boys, stand back and stand by.”

“Stand by” means “Wait for my orders.” Those orders came four months lat­er when Trump, via Twitter, sum­moned a mob to Washington, D.C., to protest what he false­ly claimed was a stolen elec­tion. He promised that Jan. 6, 2021 would “be wild.”

“The cen­tral cause was one man, for­mer President Donald Trump, who many oth­ers fol­lowed,” the report said. “None of the events of January 6^th would have hap­pened with­out him.”

Speaking at his Stop the Steal ral­ly, Trump told his sup­port­ers to march on the Capitol, where Congress was about to cer­ti­fy Biden’s elec­toral win, and “fight like hell.” If they didn’t, he said, they wouldn’t have a coun­try anymore.

In the crowd that day were mem­bers of the Proud Boys, Three Percenters, and Oath Keepers, far-right mili­tias whose lead­ers had been in con­tact with Trump asso­ciates Roger Stone, Mike Flynn, and Steven Bannon. Some mili­tia mem­bers left the ral­ly before it end­ed, cleared bar­ri­cades for the mob, and joined in storm­ing the Capitol, assault­ing police offi­cers and hunt­ing lead­ers, includ­ing Speaker of the House Nancy Pelosi and Vice President Mike Pence, whom they threat­ened to hang for refus­ing to ignore the elec­toral count and declare Trump the win­ner. In tes­ti­mo­ny they gave to the House com­mit­tee inves­ti­gat­ing the Jan. 6 attack on the Capitol, riot­ers defend­ed their actions by say­ing they were just doing what Trump told them to do.

In its 800-page report released on Dec. 22, the pan­el con­clud­ed that Trump plot­ted to crim­i­nal­ly over­turn the 2020 elec­tion and pro­voked his sup­port­ers to vio­lence with his pho­ny claims of vot­er fraud.

“The cen­tral cause was one man, for­mer President Donald Trump, who many oth­ers fol­lowed,” the report said. “None of the events of January 6^th would have hap­pened with­out him.”

The com­mit­tee referred crim­i­nal charges against the for­mer pres­i­dent to the Justice Department. It rec­om­mend­ed that Trump be charged with obstruc­tion of an offi­cial pro­ceed­ing of Congress, con­spir­a­cy to defraud the United States, con­spir­a­cy to make a false state­ment, and incit­ing or assist­ing with an insurrection.

But the Justice Department, which is con­duct­ing its own inves­ti­ga­tion, doesn’t have to fol­low the committee’s rec­om­men­da­tions. It could charge Trump with oth­er crimes or none. But even if Trump is charged and con­vict­ed in fed­er­al court, it may not mat­ter. Being a con­vict­ed felon does not dis­qual­i­fy a can­di­date from seek­ing the pres­i­den­cy or serv­ing if elected.

Trump has announced that he is run­ning for a sec­ond term as pres­i­dent in 2024. If he is elect­ed, he could par­don him­self and any­one else con­vict­ed in the attack on the Capitol. He has already said in an inter­view that he would issue “full par­dons” and a pub­lic apol­o­gy to the rioters.

While a felony con­vic­tion may not keep Trump from becom­ing pres­i­dent again, there is anoth­er way to pro­tect our democ­ra­cy from the threat pre­sent­ed by him and his cult fol­low­ing. It lies in a con­sti­tu­tion­al pro­vi­sion that was orig­i­nal­ly intend­ed to keep for­mer Confederate lead­ers who had served in the United States gov­ern­ment before the Civil War from serv­ing in it again.

Section three of the 14^th Amendment bars from state or fed­er­al office any for­mer offi­cial 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.”

Four years after the amend­ment was rat­i­fied, Congress, in a ges­ture of nation­al uni­ty, passed the Amnesty Act of 1872 to repeal the pro­hi­bi­tion against for­mer Confederates serv­ing in the U.S. gov­ern­ment. An appel­late court, how­ev­er, said that the amnesty only applies to those for­mer Confederates and not to any­one else.

Eric Foner, a promi­nent Civil War his­to­ri­an, has said he believes sec­tion three could apply to Trump and mem­bers of Congress who sup­port­ed the for­mer president’s base­less claims of vot­er fraud and the demon­stra­tions that led to the attack.

“The lan­guage in sec­tion three applies to any­body who has made an oath to the Constitution and then vio­lates that oath,” Foner said. “It’s pret­ty simple.”

Unlike Trump’s impeach­ment for insur­rec­tion fol­low­ing the Jan. 6 attack, which failed to get a required three-fifths major­i­ty in the Senate to con­vict the for­mer pres­i­dent, the Disqualification Clause would require only a sim­ple major­i­ty of 50 per­cent plus one.

Forty House Democrats, led by Rep. David Cicilline of Rhode Island, have intro­duced leg­is­la­tion to bar Trump from hold­ing fed­er­al office again based on the Disqualification Clause.

“You don’t get to lead a gov­ern­ment you tried to destroy,” Cicilline said in a statement.

Not only did Trump encour­age the vio­lence of Jan. 6, the state­ment said, but he also tried to intim­i­date state and fed­er­al offi­cials who refused to go along with his lies about the elec­tion, and for hours he refused to denounce the mob that stormed the Capitol.

Cicilline’s leg­is­la­tion should have been intro­duced ear­ly enough in the year for mem­bers to vote on it before the new Republican major­i­ty takes con­trol of the House in January. I don’t have faith that there are enough pro­files in courage among GOP mem­bers to do the right thing, but I hope I’m wrong. It may have a bet­ter chance than crim­i­nal pros­e­cu­tion, which could be tied up in court well into the 2024 elec­tion sea­son, mak­ing a con­vic­tion less likely.

The dan­ger to our democ­ra­cy posed by a pop­ulist dem­a­gogue who doesn’t believe in democ­ra­cy or the Constitution (he recent­ly said on his Truth Social net­work that “the rules” of the Constitution could be sus­pend­ed) is unprecedented.

Why not leave it to the vot­ers to end Trump’s polit­i­cal career? Because, despite the fact that many Trump-endorsed elec­tion deniers lost their elec­tions in bat­tle­ground states in the 2022 midterms, it’s evi­dent that most red state vot­ers are still in thrall to Donald Trump and his move­ment. Many are so brain­washed by Fox News and oth­er pro­pa­gan­da media that they don’t believe he is cor­rupt to the core — or so par­ti­san that they don’t care.

And though there are a few Republican lead­ers like Sen. Mitch McConnell who have the courage to stand up to Trump, most are as craven as Rep. Kevin McCarthy, the next speak­er of the House. McCarthy, after hav­ing called for use of the 25^th Amendment dur­ing the riot to remove the pres­i­dent from office, went to Florida a few days lat­er to kiss Trump’s … ring, and pledge his loyalty.

The dan­ger to our democ­ra­cy posed by a pop­ulist dem­a­gogue who doesn’t believe in democ­ra­cy or the Constitution (he recent­ly said on his Truth Social net­work that “the rules” of the Constitution could be sus­pend­ed) is unprece­dent­ed. Barring Trump from run­ning for pres­i­dent again would be con­tro­ver­sial and lead to accu­sa­tions that it is par­ti­san revenge. But Trump so egre­gious­ly defied the law and civ­il norms that he leaves us no choice. He tried to sub­vert our con­sti­tu­tion­al order by refus­ing to accept the peace­ful trans­fer of the pres­i­den­cy after a free and fair elec­tion. That hasn’t hap­pened before in our nation’s his­to­ry. He must be held accountable.

And he must be kept from hold­ing pow­er that holds the fate of the world hostage.

Trump shows signs of being a sociopath. If he were pres­i­dent again and term-lim­it­ed, he would have few­er restraints. He would be a reck­less tyrant, an American Vladimir Putin, who would attempt to con­sol­i­date exec­u­tive author­i­ty, ignore checks and bal­ances, and threat­en his ene­mies with “fire and fury.” That isn’t the kind of tem­pera­ment we need in the leader of the free world.

Eighteenth cen­tu­ry philoso­pher Edmund Burke said that nation­al leg­is­la­tors are not sim­ply del­e­gates, but trustees who must some­times go against the wish­es of uni­formed con­stituents and use their own judg­ment to deter­mine what is in the nation­al interest.

There is a time to fol­low and a time to lead. This is a time to lead.