Democrats exploring barring Trump from taking office

Post-Civil War era constitutional amendment considered as path to prevent former president from launching another campaign

A number of Democrats, alongside some constitutional scholars and pro-democracy advocates, have been exploring ways to bar Donald Trump from ever holding office again.

They’ve been looking into whether a constitutional amendment from the post-Civil War era could be used to prevent Mr Trump from returning to the White House.

While the interest in banning the former president from returning to public office, which peaked after the Capitol riot a year ago, has since waned, some have stayed focused on the issue and say that the discussion about putting Section 3 of the 14th Amendment into effect have carried on and are still active.

Harvard Law School constitutional scholar Laurence Tribe told The Hill: “If anything, the idea has waxed and waned. I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”

Around a dozen Democratic lawmakers have discussed the issue, either in public or in private, over the course of the last year, according to The Hill.

Maryland Representative Jamie Raskin, a member of the House Select Committee investigating 6 January; New York Representative Jerry Nadler, the chairman of the House Judiciary Committee; and Florida Representative and former Democratic National Committee chair Debbie Wasserman Schultz have all recently spoken with Mr Tribe.

“I continue to explore all legal paths to ensure that the people who tried to subvert our democracy are not in charge of it,” Ms Wasserman Schultz told The Hill.

Section 3 of the 14th Amendment states that officeholders who “have engaged in insurrection or rebellion against the same” are banned from holding office again. The 14th amendment was adopted on 9 July 1868, just over three years after the end of the Civil War.

Mr Raskin is a former constitutional law professor and was the House manager for Mr Trump’s second impeachment trial following the insurrection.

He told reporters at the time that Mr Trump was “right in the bullseye middle of” the group of those to who the constitutional section could be applied.

“The point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office,” he told ABC News on 17 February 2021. But he added that the issue required “more research”.

Most constitutional experts said lawmakers would have to take a separate step to make the 14th amendment operative in order to apply section three, The Hill reported.

Some scholars think that a simple majority in both the House and the Senate could find that Mr Trump was engaged in the insurrection and thereby apply section three. A supermajority vote – two thirds – would then be needed to make Mr Trump eligible for office again.

Other scholars, including Mr Tribe, think that Congress would have to establish a separate body or assign the matter to a court to determine if Mr Trump engaged in insurrection.

Pro-democracy group Free Speech For People has launched a pressure campaign to get state election officials to take action and use the 14th Amendment if Mr Trump decides to join the campaign trail again, which would prevent him from being on the ballot in the states where officials choose to act.

The group sent letters to election officials in all 50 states and Washington, DC, telling them that they have to prevent Mr Trump from appearing on their ballots, arguing that the 14th amendment is already operative and no additional action is needed.

“Just as states are permitted (if not required) to exclude from the presidential ballot a candidate who is not a natural-born citizen, who is underage, or who has previously been elected twice as president, so too states should exclude from the ballot a candidate, such as Mr Trump, who previously swore to support the Constitution, but then engaged in insurrection,” the letter to the head election official in Georgia states.

If the election officials don’t take action, the group intends to “litigate this question”, according to Free Speech For People President John Bonifaz.

“So if a secretary of state does not follow the mandate of Section 3, the 14th Amendment, we will bring this matter in court,” he told The Hill.

Some legal scholars think such a court case could be difficult to win. Indiana University law professor Gerard Magliocca told the outlet: “If a Secretary of State declines to find Trump ineligible, it is far from clear who could challenge that determination.”

Mr Tribe told The Hill that Mr Trump would likely be able to launch a successful lawsuit against a ban unless Congress sets up a neutral fact-finding body determining that he was engaged in the insurrection and that Section 3 of the 14th Amendment applies.

The professor added that Mr Trump’s ability to run for office again may hinge on what the House Select Committee investigating 6 January reveal about Mr Trump’s actions in relation to the insurrection. A report on the matter could lead to more widespread support for, and legislative action on, a ban.

“Once that committee makes clear, as I trust it will, that what took place was indeed an insurrection that triggers Section 3 of the 14th Amendment and that supports criminal prosecution by DOJ of those responsible, it is difficult to imagine this not becoming a logical next step,” Mr Tribe said.