As I write, Trump has become the only US president to be impeached twice—and on a bi-partisan vote in the House of Representatives that included 10 Republicans. This is a first step towards achieving some accountability for the shocking and violent riots in the Capitol on 6th January, which forced members of Congress into hiding in fear for their lives, resulted in at least five deaths, and delayed certification of President-elect Biden’s election victory.
President Trump’s responsibility in this insurrection (given his address to the rioters immediately before their forced entry, and his initial reluctance to condemn their action—instead saying “We love you”) has been asserted (in the words of Nancy Pelosi, a “clear and present danger to the nation we all love”) as well as contested. But what is clear is that Trump will not resign, nor will Vice President Pence and other members of the Trump Cabinet invoke the 25th Amendment to remove Trump from office on grounds of his incapacity.
So how to achieve any accountability? The impeachment is an obvious route, even at this late stage in the presidency. Even if impeachment cannot now remove Trump from office before his term expires, it seeks to establish some culpability for his actions, not least in the fact of his being the only President to be impeached twice, and the fact that an impeachment conviction in the Senate could bar him from standing again in 2024.
However, the route to an impeachment conviction in the Senate is not so straightforward—still to be settled is just when an impeachment trial might be held (probably after Joe Biden’s inauguration, and would it then interfere with his other congressional priorities?) and also whether it will be possible to get the necessary two-thirds Senate majority for conviction.
However, another possible avenue of action has garnered a lot of attention recently in the US. It concerns section 3 of the 14th Amendment, which reads:
“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.”
This basically disqualifies federal and state officeholders who “have engaged in insurrection or rebellion” from holding office again.
Section 3 is now of interest both as a means to prevent Trump from seeking to run as president in 2024, and also as a procedure to invoke against those members of Congress who made unfounded claims that the 2020 election was “stolen” by electoral fraud, and who protested the certifying of election results in Congress.
The 14th Amendment was ratified in 1868, after the American Civil War, and overall made provision for citizenship and equal protection under the law to anyone born or naturalised in the United States, including those formerly enslaved. Ratification was fiercely opposed in the South, which argued the 14th Amendment would harm any effort to unite the country (now where have we heard a similar claim recently?) The aim of section 3 was to bar ex-confederates from holding public office again. For example, Alexander Stephens, former vice president of the Confederacy, sought readmission to Congress in 1865. However, although the amendment was originally applied to bar such positions, its use against ex-confederates was discontinued from 1872, after Congress passed the Amnesty Act—partly motivated by a white terror campaign in the South. (And so Stephens was able to take his seat in Congress from 1873-1882.)
However, the language of section 3 is not tied to the Civil War—it does not mention confederates, and applies to any person who violates their oath to the Constitution in the manner described in the Amendment. There is no reason to believe it could not be applied today.
Enforcing section 3
But the important question is—how would section 3 actually be applied, and could it be used to bar Trump (or others) from future office by a simple majority vote, thus evading some of the potential pitfalls of the impeachment procedure? Section 3 itself does not specify the relevant procedure for its enforcement. Since shortly after the Civil War, the section has been generally considered (in American parlance) a non “self-executing” provision, meaning Congress must take further action before it can be applied. Section 5 of the 14th Amendment specifically empowers Congress to enforce the whole amendment “by appropriate legislation.” In 1870, Congress passed the Enforcement Act, also known as the First Ku Klux Klan Act (so called because its main purpose was to protect black citizens from violence perpetrated by the Ku Klux Klan and other racist white supremacy groups), which set out procedures to enforce section 3, enabling federal prosecutors to bring actions in federal courts to remove offending officeholders. Congress could legislate in this way today, declaring that anyone sworn to uphold the Constitution who incited, directed or participated in the Capitol riot had engaged in insurrection or rebellion, and also declare such people disqualified from future office.
It has been objected that Article 1 s9 of the US Constitution contains a ban on Bills of Attainder (namely, laws that declare a specified individual guilty of a crime and impose a punishment) which section 3 could infringe. This construction was opposed at the time of its adoption, with Senator Trumbull declaring that “[W]ho ever heard of such a proposition that a bill excluding men from office is a bill of pains and penalties and punishment?” and the issue was never ultimately determined. But, in any case, Congress need not name names in legislation and can instead adopt resolutions specifying the persons to be disqualified.
According to Liz Cheney, the No 3 House Republican, “The president of the United States summoned this mob, assembled the mob, and lit the flame of this attack.” Many will argue that, whatever the culpability of the mob who invaded the Capitol, Trump himself is not guilty of insurrection, nor of inciting it. US law is highly protective of public speech under the First Amendment, however hateful it may seem. Yet section 3 is not itself a criminal procedure, so the First Amendment standard of Brandenburg v Ohio 1969 (the Supreme Court case which held that speech—at a Ku Klux Klan rally—advocating violence may not be punished unless it is “directed to inciting or producing imminent lawless action and is likely to produce such action”) would not constrain its interpretation. Trump’s speech could have amounted to insurrection, even if not to incitement under the Brandenburg standard.
So use of the 14th Amendment has its advantages. Its application could be achieved in Congress by a simple majority, unlike the impeachment process. On the other hand, factoring in court proceedings to ensure disqualification of officials would add extra time (and there is an interesting comparison to be made with the UK here, where a jealous protection of parliamentary privilege might rule out any substantial court involvement in the disqualification of MPs from public office). But there is no reason why both proceedings—impeachment and section 3—should not be used simultaneously.
Some commentators have argued that section 3 was relevant only in the context of the Civil War and should not be used now. I find this puzzling. The rest of the 14th Amendment was passed in the immediate aftermath of the Civil War, but it is not suggested that its equal protection clause, for example, is today irrelevant. Section 3 itself is drafted in general terms and not time limited. Why should certain sections of the US Constitution be condemned to obsolescence simply because they were drafted at a particular time?
In any case, there exists a very unpleasant undertone to last week’s Capitol riots, one in which the Civil War is by no means past. Some of the rioters very publicly brandished Confederate flags, others sported clothing with racist messages. The debates over the amnesty on enforcement of section 3 in the post-Civil War era reflect concerns in today’s US. How best—if at all—to heal a divided nation? How can there be reconciliation if there is no accountability for past offences?
President Andrew Johnson—the Vice President who took office after Abraham Lincoln’s assassination—very narrowly escaped an impeachment conviction himself and pardoned most major players in the Confederacy. He opposed the 14th Amendment and is also now generally held responsible for enabling a swift end to Reconstruction and re-empowering the South. Although the Amnesty Act was passed in 1872, by which time Ulysses Grant was President, the damage had been done, and the Amnesty Act has been described as both “a harbinger of Reconstruction’s end and the contraction of the 14th Amendment.” By the “Compromise of 1877,” Union troops were withdrawn from the South, and effective federal enforcement of the 14th Amendment on racial matters halted. None of this was conducive to a healing process, and the consequences of the end to Reconstruction are still very visible in the US today. As has been remarked, “If there were ever a moment to invoke the centrepiece of the Reconstruction amendments, that moment is now.”
