Jan. 6 panel member floats 14th Amendment as way to bar Trump from holding office
Neither of Donald Trump's impeachment trials led to his conviction, which would have prevented him from returning to the White House. Rep. Jamie Raskin has another idea on how to bar the former president.
Raskin suggested that the constitutional provision preventing those who “engaged in insurrection or rebellion” from holding office may prevent Trump from becoming president for a second, nonconsecutive term. Having lost to President Joe Biden in 2020, Trump is eligible for another White House term. Polls show him the clear favorite to win the 2024 Republican nomination if he runs.
The Maryland Democrat said the prohibition on holding office again could also apply to some current Republican members of Congress, who, like Trump, are being scrutinized for their actions on Jan. 6.
“If they're people who did participate in insurrection, or rebellion, they are constitutionally barred from holding federal or state office again,” Raskin, a member of the House select committee formed to investigate the Jan. 6 Capitol riot, told reporters last week.
It's hardly a slam dunk legal case, though. After all, Trump in February was acquitted by the Senate of an “incitement of insurrection” impeachment charge. Trump's first impeachment trial, a bit over a year earlier, saw him acquitted on charges of abuse of power and obstruction of Congress stemming from his pressure on Ukraine's president to dig up political dirt on Biden's son, Hunter.
But Raskin, previously a tenured constitutional law professor at American University, said it is an open question whether that section of the 14th Amendment is “self-executing” and can “operate in itself” without requiring a previous conviction.
“We don't have a lot of precedent,” Raskin said.
“There's also another view out there that, for example, Donald Trump has already been determined to have participated in insurrection and rebellion by virtue of his impeachment by the House by majority vote, and then the determination by 57 senators that he incited violent insurrection against the union,” said Raskin, who was a House impeachment manager. Although Trump "wasn't convicted for the purposes of impeachment, it could be argued that a majority has established as a legislative fact that he participated in insurrection or rebellion.”
Raskin went through the “fascinating history” of the amendment, added after the Civil War, saying it was designed to “focus on the inner core of the most culpable people” rather than broadly disenfranchise anyone who participated in insurrection or rebellion by barring them from ever voting again. “The language is mandatory: shall not.”
Using the 14th Amendment as a way to keep Trump or other members of Congress from holding office again gained steam last year after the Jan. 6 riot.
Missouri Democratic Rep. Cori Bush and 47 co-sponsors introduced a resolution directing the House Ethics Committee to investigate whether any members of Congress violated the Constitution by seeking to overturn the 2020 presidential election, citing the 14th Amendment. Another bill from Democratic Tennessee Rep. Steve Cohen aims to enforce the 14th Amendment provision by allowing the attorney general to argue before a three-judge panel that an officeholder or former officeholder engaged in insurrection or rebellion.
Those enforcement mechanisms were proposed because determining what it means to have engaged in insurrection or rebellion “or given aid or comfort to the enemies thereof,” thereby triggering the constitutional provision, is not clear-cut in today’s divided Congress.
Stewart Rhodes, a leader of the right-wing Oath Keepers militia group, and 10 other members were the first people to be charged with seditious conspiracy last week relating to the Jan. 6 attack.
But activists are pursuing a new tactic to employ the constitutional provision to bar members of Congress from seeking office over Jan. 6.
North Carolina Republican Rep. Madison Cawthorn, who spoke at a rally at the Ellipse alongside Trump on Jan. 6, is facing a challenge to his 2022 reelection from those who argue that his role in the "insurrection" makes him constitutionally ineligible to hold office. A complaint was filed with the state board of elections last week.
“We'll see what [a] court says, because the alternative view is that Congress needs to act and Congress needs to decree that someone participated in an insurrection or rebellion,” Raskin said.
The same left-wing group that spearheaded the complaint against Cawthorn, Free Speech for People, has sent letters to secretaries of state arguing the point that Raskin articulated should Trump try to run for office again in 2024, that they must prevent him from appearing on the ballot due to the 14th Amendment.
The idea of using the 14th Amendment against members of Congress also has support from legal scholar Laurence Tribe, Raskin's onetime Harvard Law School professor.
“Even if Section 3 of the 14th Amendment isn't self-executing against the former president, it is certainly a strong basis for a vote of expulsion from the House for those members who aided and abetted the insurrection,” Tribe tweeted in October.