The Fourteenth Amendment at Section 3 says this:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, 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, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
And Section 5 gives Congress the power to “enforce, by appropriate legislation, the provisions of this article”.
The United States Code declares such at 18 USC §2383:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Since all the discussion on this is about Donald Trump, the question comes down to this and the presumption that January 6, 2021, was an “insurrection”: could he be disqualified under the Fourteenth Amendment from holding Federal office?
Not letting him campaign
If you’re looking to disqualify him before the fact, your only option is to indict him with violating the Federal insurrection statute – 18 USC §2383 – and winning a conviction that is not then overturned on appeal. There is no other option available.
Congress can pass a resolution declaring Trump ineligible, citing what happened on January 6, 2021, as justification. But resolutions have no force of law.
Bills do have the force of law, but only if properly passed by Congress and signed by the President. So let’s say that Rep. Davide Cicilline (D-RI) gets his wish and gets a bill through the ringer declaring Trump specifically to be ineligible under the Fourteenth Amendment. What then?
It’ll die in the Court the moment Trump challenges it because it’d be a bill of attainder.
So, then, let’s say he gets on the ballot and wins reelection in 2024. What now? Is there no remedy?
Impeach him… yet again
The House always has the power to impeach the President, Vice President, or any civil officer for really… any reason they want. This means if Trump is reelected in 2024 and is sworn into office in 2025, the House could bring impeachment articles against him the moment he is sworn in.
They tried to do that in 2017, so why not? Only this time it’d be on allegation he’s disqualified under the Fourteenth Amendment. He’s already been tried twice, acquitted both times, so.. third time’s a charm?
Writ of quo warranto
There is another option. This could be exercised if the House does not impeach him or the Senate fails to convict or decides against holding a trial. It’s called a writ of quo warranto. I should elaborate first that the writ itself doesn’t remove the person from public office. It leads to a Court trial to determine, by a preponderance of the evidence, whether they should be removed.
Not long after the Fourteenth Amendment was ratified came the Enforcement Act of 1870. Section 14 of that Act required a United States District Attorney to initiate a writ of quo warranto action against any person suspected of holding an office in violation of Section 3, excluding “a member of Congress or of some State legislature”.1“That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office;”
Why that exclusion? Under the Constitution of the United States, only the House and Senate has the power to remove its own members.2Article I, Section 5: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members… Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” And excluding members of a State legislature is about preserving the separation of sovereignty between the Federal and State governments.
That section was repealed in 1948 as being obsolete. Which it actually was by that time. The political landscape even then was far different from 1870 when the Enforcement Act was enacted. Congress chose the writ was an option to remove quickly any Confederates who may have been elected or appointed to Federal office in contradiction of the Fourteenth Amendment. The statute even provided that any writs requested by a United States District Attorney be given priority over all other entries on the docket at a Circuit or District Court.3“and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable”
The repeal left behind the existing insurrection statute enacted as part of the Confiscation Act of 1862. That Act also declared that someone guilty of those crimes is “forever incapable and disqualified to hold any office under the United States”. But Congress realized that statutes cannot expand upon the qualifications laid out in the Constitution. Meaning Congress cannot then declare their own where the Constitution is silent. Further the Act was passed in 1862, meaning under the prohibition of ex post facto laws, it couldn’t apply to anyone already engaged in insurrection before the statute was signed into law.
The repeal, though, does not mean quo warranto is not a remedy. Only that no officer of the United States is specifically charged with the “duty” of pursuing one.
The existing quo warranto statute4Chapter 35 of the Code of the District of Columbia says the Attorney General “may” bring action against a person who “unlawfully holds or exercises… a public office of the United States”.
But Trump would easily have a… trump card: insurrection is a specifically-defined crime under the United States Code. As the Fourteenth Amendment grants only Congress the power to enforce Section 3, the argument could easily be made that Congress chose the Federal criminal code as the means of enforcing it, nullifying the writ of quo warranto as an option.
That Congress previously had enacted quo warranto specifically as an option for enforcing Section 3, then later repealed it, supports that argument. That the insurrection criminal statute specifically declares disqualification from office as part of the penalty for conviction also supports it.
Congress intends for a criminal conviction to invoke the Fourteenth Amendment, not mere assertion exercised via a quo warranto action that someone engaged in an insurrection.
This means quo warranto doesn’t become an option unless the person has been previously convicted of insurrection or removed from office via impeachment.
That is, unless Congress makes it one again.
Does Section 3 even apply to Trump?
But then there’s this question: does Section 3 of the Fourteenth Amendment apply to the Office of the President of the United States? This debate is arising out of this clause: “having previously taken an oath, as a member of Congress, or as an officer of the United States”.
The President is not an “officer of the United States”. He commissions them. We see this in Article II of the Constitution at Section 2:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…
And in the same at Section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The President is separately listed from “officers of the United States”. As such the President is exempt from Section 3 of the Fourteenth Amendment. That is a plain reading of the Constitution.
This also means no person who served as President who is then convicted of insurrection under 18 USC §2383 for acts undertaken while that person was President cannot be disqualified from office. The provision of 18 USC §2383 could not apply. To apply it would mean a statute enacting an additional qualification for office beyond that stated in the Constitution.
Amending the Constitution is the only way to make it stick.
State legislatures and the Electors
No one has so far described this as another remedy, so I just wanted to put it out there to get ahead of it: State legislatures declaring that the Electors they appoint cannot cast a vote for Donald Trump.
I’ve said before that the State legislatures have the sole power to determine how the Electoral Votes are cast. That they put that question before the people of that State is a mere courtesy and one that can be revoked at any time.
But I’ve also said this in arguing that the National Popular Vote Interstate Compact is unconstitutional: “If a State turns to the People therein to determine how to award the Electoral Votes, then they must not award them in such fashion that is obviously contrary to how those people vote.”
So could the State legislatures pass a binding resolution forbidding Electors from casting votes for Donald Trump? No. Not only would such be unconstitutional since it would amount to casting votes in contradiction to how the people of that State voted, it could also be construed as a bill of attainder.
Conclusion
In short, absent an amendment to the Constitution enacting otherwise, impeachment by the House and conviction by the Senate is the only way Donald Trump can be deemed ineligible by the Constitution of the United States from ever again holding any office under the United States.
References
