The Senate acquitted on the impeachment of former president Donald Trump. End of story? Not at all. Section 3 of the Fourteenth Amendment says:
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. But Congress may by a vote of two-thirds of each House, remove such disability.
The House of Representatives passed an Article of Impeachment for “Incitement of Insurrection” and specifically cited this part of the Constitution. The Senate by a majority vote made a judgment that the House had proved its case, though it failed to reach the 2/3 threshold to convict and then bar from future office under the impeachment clause. As an amendment to the Constitution, Section 3 supersedes all other provisions of the Constitution, including the impeachment clause.
But how does one enforce Section 3? Congress, in 1870, decided that the means of enforcement for anyone except a member of a legislature would be through the charging of a federal misdemeanor in federal court and for a court order removing that person from office. See 140 (1870) 16 Stat. Sec.s 14 & 15 (see the Force Act or Ku Klux Klan Act). To what extent these remain in force today is a matter for legal historians. But the point is that this provision is enforceable by either the legislature in question, or by the courts for everyone else. The Senate’s majority vote is strong evidence that the provision has been satisfied.
Why isn’t this matter addressed by the Senate’s failure to convict on a 2/3 vote? Impeachment is for any high crime or misdemeanor. We amended our Constitution to account for the seriousness of insurrection or rebellion. As a result, we have specific disqualifications for this category of wrongdoing, and nothing in Section 3 requires a 2/3 vote of the Senate. The Senate majority vote is a finding and, therefore, strong evidence for a court to bar Trump from holding any office covered by Section 3 of the 14th Amendment.
Timothy J. Keefer
Timothy J. Keefer is an attorney licensed in the District of Columbia and the Commonwealth of Virginia. He graduated with a J.D. magna cum laude, Order of the Coif, Law Review, from The Washington & Lee University School of Law, and with a B.A. magna cum laude, Phi Beta Kappa, in Russian Area Studies from The State University of New York at Buffalo. He has been a professor of National Security Law, and Public Policy. He was a key attorney for the Bush/Cheney 2000 campaign in the case of Bush v. Gore while with the law firm of Covington & Burling. He has provided direct legal and policy advice to three Cabinet Secretaries, over 20 federal judges, and many senior government officials on major constitutional, statutory, policy, and ethical issues. He was an appointee of the President George W. Bush Administration. He was a senior career official of the U.S. Department of Homeland Security 2003-2009. He was a professional in the intelligence community and participated in providing intelligence support in-country to operational units, and in Washington, D.C. to senior military leaders, for the first Gulf War. He is a U.S. Navy veteran.
Dispatches from the Imperial Capital 