Donald Trump hates democracy when it does not serve his purposes, as was confirmed by the president’s incitement last week of a deadly assault on the US Capitol by supporters of his failed attempt to overturn 2020 presidential results. But that does not mean Trump intends to give up on his dream of serving a second disastrous term as president of the United States.
For this reason, every option for holding Trump to account must be explored. The immediate impeachment and removal of the president is the first and best option, and the House of Representatives is prepared to begin the process Wednesday. If Senate Republicans block the completion of that process, however, that cannot be the end of work of assuring that the threat Trump poses is addressed. In particular, attention should be paid to the prospect of congressional action recognizing that the president’s incitement of insurrection disqualifies the president from ever again holding public office under the requirements of the 14th Amendment to the US Constitution.
Added to the Constitution after the Civil War, the 14th Amendment is a blunt instrument, which mandates in its third section:
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.
Section 5 of the amendment declares, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
That power is consequential because Donald Trump will remain a clear and present danger to the republic for so long as he serves as president—and for so long as he aspires to return to the presidency.
After everything that has happened over the past week, it is easy to imagine that Trump has written himself out of contention for any public office. But that is not the case. Trump is still plotting, still scheming, still campaigning—as was amply illustrated by his planned trip on Tuesday to Alamo, Tex., to highlight his crusade to erect a wall on the border between the US and Mexico.
To imagine that Trump will fade away after January 20 requires the denial of everything Americans know about the president’s massive ego, his aversion to being seen as a loser, and his determination to avenge his defeat in the 2020 election. That is why former Secretary of Labor Robert Reich and others have focused on the importance not merely of holding Trump to account for past actions but of assuring that he does not extend the threat to the republic by positioning himself as a president-in-exile after he leaves office. “We must,” says Reich, “ensure that Donald Trump can never hold public office again.”
If Donald Trump can run for president again, he will. Or, at the very least, he will suggest that he is prepared to do so—leveraging the prospect to continue to demand media attention, raise money from his delusional donors, and rally supporters to attack the underpinnings of the American experiment. “If nothing is done to stop him, Donald Trump will do two things: He will use the lack of a response to claim that he did no wrong, and he will position himself to do more wrong,” says Representative Mark Pocan of Wisconsin. “That’s what he has always done. That’s who he is.”
The prospect that Trump will pose an ongoing threat is one of the primary motivations for the efforts by members of the US House of Representatives to impeach Trump on Wednesday. The impeachment resolution that was introduced Monday by a trio of House Judiciary Committee members—Representatives David Cicilline of Rhode Island, Ted Lieu of California, and Jamie Raskin of Maryland—recounts Trump’s actions leading up to the January 6 attack on the Capitol and indicts Trump for incitement of insurrection against the United States. The resolution begins by explaining:
The Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment, for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office… under the United States.”
After detailing evidence of Trump’s incitement to insurrection, the resolution concludes:
Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.
The impeachment of Trump is the appropriate and necessary response to the president’s incitement of insurrection. There should be no distraction from the House’s work of demanding accountability, as proposed by Cicilline, Lieu, and Raskin, and by other members such as Representative Ilhan Omar of Minnesota.
But impeachment does not guarantee removal of Trump from office, nor that he will be blocked from seeking the presidency again. When the House impeached Trump in 2019, the Republican-controlled Senate protected him in 2020 and could do so again in 2021. Senate majority leader Mitch McConnell of Kentucky, has said that the Senate cannot even consider trying Trump before January 19, his last day in office. McConnell has not rejected the idea outright, retaining a small measure of leverage over the president. But the majority leader is not urgently engaged with the accountability project.
When Democrats take control of the Senate, with the seating of Georgia Senators-elect Raphael Warnock and Jon Ossoff, McConnell will no longer be able to block action. But Senate Republicans will retain sufficient numbers to block the removal of the president or the imposition of impeachment-related sanctions on him—as that requires a two-thirds vote from the closely divided chamber.
This is why focusing on the 14th Amendment is relevant. As Pulitzer Prize–winning historian Eric Foner reminds us, the House and Senate could, with a simple majority vote, censure Trump for inciting insurrection and, with the approval of a President Joe Biden, effectively bar Trump from running again for the presidency. “This can be invoked against anyone who has ever taken an oath to support the Constitution, including the president,” Foner says of the 14th Amendment. “It’s much simpler than impeachment. It is not a judicial proceeding. It’s a political proceeding. It doesn’t involve lawyers or trials. It is simply about qualification for office. You could have one afternoon of debate and a vote.”
A strategy for impeachment and removal must be pursued with a singular focus and a sense of urgency in the coming days. But if Republicans obstruct the completion of that process, a joint House-Senate resolution confirming the fact that Trump has violated the 14th Amendment, and specifically noting that this represents enforcement of the provisions of that amendment, should be understood as an appropriate tool for addressing the ongoing threat posed by Donald Trump. “There’s been talk about Trump’s role as sort of the government in exile, with regard to rallying Republicans when he’s out of office,” explains Alan Baron, a former special impeachment counsel for the House Judiciary Committee. “If he’s barred from holding any federal office, he’s kind of a toothless tiger.”