Explainer: impeachment or the 14th amendment

© Reuters.

By Jan Wolfe (Reuters) – Some US lawmakers have said President Donald Trump should be disqualified from political office again after his impeachment on Wednesday for inciting a mob that stormed the Capitol as lawmakers certified the victory of the President-elect Joe Biden. Now that the House has impeached Trump, the Senate will hold a judgment on whether to remove him and possibly exclude him from future office. Legal experts said disqualification could be achieved through the impeachment process or the 14th Amendment to the US Constitution. Here’s how the disqualification effort could play out. CAN THE DISQUALIFICATION OF TRUMP BE ACHIEVED THROUGH THE PROSECUTION? The Constitution of the United States says that there are two ways to punish an accused official: removal from office or “disqualification from holding and enjoying any position of honor, trust, or profit under the United States.” The House passed a single article of impeachment accusing Trump of inciting insurrection when he delivered an incendiary speech to his supporters shortly before the pro-Trump mob swept through the Capitol. Trump is likely to argue at trial that his remarks were the free speech protected by the Constitution’s First Amendment and that, while he told his supporters to “fight back,” he did not mean it as a literal call for violence. The removal of an official requires a “conviction” by a two-thirds majority in the Senate under the Constitution. Under the precedent, only a simple majority is needed for disqualification. Historically, that vote only happens after a conviction. Three federal officials in US history have been disqualified through impeachment proceedings. All three were federal judges. More recently, in 2010, the Senate removed and disqualified from future office a Louisiana judge who was found to be involved in corruption. There is some debate about the scope of the disqualification clause and whether it applies to the presidency, said Brian Kalt, a law professor at Michigan State University. Analyzing historical documents, some legal experts say the founders did not intend for the presidency to be considered a “position” under the disqualification clause, while others argue that the term applies. CAN TRUMP BE DISQUALIFIED IF HE IS NOT CONDEMNED BY THE SENATE? This is uncharted legal territory and there is no clear answer, the academics said. Paul Campos, a constitutional law professor at the University of Colorado, said he believed a vote to disqualify Trump could be held even if there were not enough votes for conviction. The US Supreme Court has made clear that the Senate has wide latitude in determining how it conducts a trial, he said. But Kalt said he thought disqualification would first require a conviction. To do otherwise would amount to punishing the president for a crime he did not commit, Kalt said. The three judges who were disqualified from their duties were sentenced first. WHAT ABOUT AMENDMENT 14? Section 3 of the 14th Amendment provides an alternative avenue for disqualification. The provision states that no person shall hold office if they have participated in an “insurrection or rebellion” against the United States. It was enacted after the Civil War to prohibit Confederates from holding public office. According to congressional precedent, only a simple majority of both houses is necessary to invoke this sanction. Congress can then remove the disqualification, but only if two-thirds of both houses vote to do so. In 1919, Congress used the Fourteenth Amendment to prevent an elected official, Victor Berger, from taking his seat in the House because he had actively opposed US intervention in World War I. The text of Section 3 of the 14th Amendment does not explain how it should be invoked. Another section of the 14th Amendment, Section 5, empowers Congress to enforce the entire amendment through “appropriate legislation.” Some scholars have interpreted this language to mean that a majority of both houses of Congress could enact a law that would apply a ban to a particular president, like Trump. “The path of the 14th Amendment is not very clear as to what it would take to get it started,” Kalt said. “I think it would require a combination of legislation and litigation.” COULD TRUMP CHALLENGE A DISQUALIFICATION IN COURT? It certainly is possible, Kalt said. A 1993 Supreme Court case makes it clear that the court mistrusts the latter – by guessing how the Senate handles impeachment. In that case, which involved an accused judge, the court said that whether the Senate had properly judged an impeachment was a political issue and could not be litigated. If Trump is disqualified, the current Supreme Court might want to clarify whether the move was legal, Kalt said. Trump appointed three of the nine members of the Supreme Court: Justices Neil Gorsuch, Brett Kavanaugh and, most recently, Amy Coney Barrett. The court now has a mixed-majority six-judge janitor. “If you’re going to say that someone can’t run, you want that to be litigated and resolved sooner rather than later,” Kalt said.