- Since the U.S. siege of the Capitol, some lawmakers have said Trump should be barred from future office.
- The 14th Amendment may be the last chance legislators have to achieve this goal.
- Legal scholars, however, disagree on how the bill can be applied at all in Trump’s case.
- Visit the Insider business section for more stories.
In the wake of the siege of the Capitol, some U.S. lawmakers have called on President Donald Trump and some of their congressional colleagues to be removed from office or prevented from ever holding office again in the future – and they can invoke the 14th Amendment to do so.
The 14th Amendment was passed in 1868 and is best known for granting citizenship rights and equal protection under the law to anyone born or naturalized in the United States, including black people and those who were formerly slaves.
The amendment repealed the decision of the Supreme Court of 1857 Scott turned against Sandford, who believed that people of African descent could not be American citizens.
However, a section of the amendment prevents anyone from holding office who has previously taken an oath to the Constitution and has “engaged in rebellion or revolt” against the United States.
Originally designed to prevent Confederates from serving as public office, it could now prevent Trump from running again.
The intention at the time was to influence the government in the south by preventing Confederates from serving in public office after the Civil War. “The idea was that officials in the United States would not be people who were treacherous to the United States,” Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider.
Here is the full text of Paragraph 3 of the 14th amendment:
“No person shall be a senator or a representative in Congress, or elect a president or vice president, or hold office, civil or military in the United States or in any state which, after taking an oath, is a member of Congress or an officer The United States or as a member of any state legislature or as an executive or judicial officer of any State in support of the United States Constitution shall have rebelled or revolted against the same or given assistance or consolation to enemies thereof. a vote of two-thirds of each house removes such a handicap. “
There are differing opinions among legal scholars as to whether the change could actually be used in Trump’s case, and if so, how exactly it would play out.
How it could be used against Trump
One uncertainty is whether the text can be applied to the presidency. While it enumerates senators, representatives and voters as positions from which a person can be excluded, the presidency is not explicitly named.
“I’m not at all sure that this applies to the President of the United States,” Kalir told Insider, adding that it is unlikely that the authors would have named these offices, but not the presidency itself, if they intended to that should apply.
More likely, he said, the section is intended to apply to senators and offices below it.
There is also uncertainty about exactly what the process would be to invoke the amendment to remove someone from office.
“It is not clear who is to decide whether the person has committed rebellion or rebellion against the United States,” Kalir said.
Some legal scholars believe that Congress itself can make this call and that they can prevent anyone from holding office by simply passing a law by simple majority in both chambers. Under this scenario, the process would be relatively simple, as Democrats currently have majorities in both the Senate and the House.
But Kalir said that logic directly contradicts another section of the Constitution that effectively blocks Congress from acting as a court.
Therefore, some scholars do not believe that Congress alone can use the 14th Amendment to ban anyone, like Trump, from holding office. Instead, the process is likely to require litigation beyond the law.
Federal prosecutors are investigating Trump’s role by inciting the revolt against the Capitol, which in theory could lead to him being convicted in a court of law.
Such a conviction could give Congress the authority needed to then pass a law preventing Trump from holding office on the condition that he has “engaged in revolt or revolt,” as the 14th Amendment says.
The amendment was invoked once in more than a century to prevent anyone from holding office
There is some historical precedent, as the change has been used to prevent someone from office, but only once in more than a century.
In 1919, Congress used the 14th Amendment to prevent Victor Berger, a Wisconsin socialist and elected official, from joining the House because he was actively opposed to the United States entering World War I.
In that case, a special committee was convened and concluded that Berger was unfit for office. He was then barred by simple majority in the Senate and House. Because of this, some believe that the kingdom’s precedent only shows that a simple majority is needed.
But the congress, which prevents anyone from participating in its own body, is remarkably different, Kalir said.
“To think that the US Congress could prevent anyone from becoming President of the United States other than through accusation is big – it’s a big legal leap.”
Berger’s case was also 102 years ago, and this section has not been used since.
Kalir says that if it was invoked today, it could be challenged in court and ultimately take years to play out.
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