The Constitution offers another path to Trump accountability

The 25th Amendment is a non-starter in the effort to remove President Donald Trump from office. Impeachment may stall in the U.S. Senate. But history’s dusty shelves offer lawmakers a tool to prevent Trump from ever holding office again—if the U.S. Supreme Court agrees.

The 14th Amendment’s Section 3 is considered one of the “forgotten” sections of that amendment so crucial to our freedom. Rarely researched and discussed in modern times, Section 3, born of the post-Civil War era, could give Congress a simpler and quicker path to end Trump’s political career, and perhaps others who supported or conspired in last week’s attack on the U.S. Capitol, according to a number of historians and legal scholars.

Link: Read the Full 14th Amendment

Section 3’s language sweeps within its ambit anyone who has taken an oath to support the Constitution. Here is what it 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.

The requirements for applying Section 3 are clear cut: (1) a previous oath to support the Constitution; (2) participation in “insurrection or rebellion” or provided “aid or comfort” to the Constitution’s enemies, and (3) a simple majority vote by each house of Congress.

If Congress votes to apply Section 3 to Trump or anyone else, he or she could not have the “disability” from holding office lifted without agreement by a two-thirds vote of each house of Congress.

Some scholars believe that the majority vote to apply Section 3 in Trump’s case could be done before he leaves office or after he leaves.

Contrast this process with impeachment, which requires a two-thirds vote in the Senate for conviction. After a Senate conviction, the Senate must take an additional step of holding a simple majority vote of 51 to disqualify Trump from ever again holding office.

Section 3 originally was intended to exclude ex-Confederate officials and soldiers from federal or state office. It is the only constitutional provision that was enforced before its ratification, according to legal scholars.

Although rarely discussed until events last week, Section 3 was a hot topic when the 39th Congress met in 1865 and realized some senators and representatives—including rebel leaders—had arrived from former Confederate states.

Interactive: See how the 14th Amendment was written

In 1869, Justin Reade of the North Carolina Supreme Court described the thinking behind Section 3, according to one legal scholar. He said, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.”

During the Reconstruction, Section 3 was used to disqualify numerous people but, as that same legal scholar wrote, since then, only one person's qualifications were challenged under Section 3, a congressman at the start of World War I.

Surprisingly, the Supreme Court as a whole played no role in the unfolding of the use of Section 3 during that period in our history. But one justice did.

Chief Justice Salmon Chase was the circuit justice for Virginia. Supreme Court justices even today act as circuit justices handling emergency applications and other matters for the 13 federal circuit courts. At the time of Chase, but not today, each justice sat in a circuit court as a trial judge with the local district judge.

In 1868, Chief Justice Chase, a leading architect of anti-slavery litigation, a former Ohio governor and a presidential hopeful, was to preside, with another judge, over the treason trial of the president of the Confederate States, Jefferson Davis, in Richmond, Virginia. At the heart of the trial would be a question never answered by the Supreme Court: whether secession from the Union was treason.

Before the trial, Chase reportedly told Davis' lawyer that he believed Section 3 was a criminal punishment. If Davis was subjected to punishment under Section 3, he could not be punished for treason or other charges because of the Constitution's double jeopardy clause. At the start of the trial, Davis' lawyers presented an affidavit showing Davis had taken an oath to defend the Constitution in 1845 when he was elected to Congress, according to historian C. Ellen Connally. That placed him within Section 3's disqualification.

The question for the trial court was whether Section 3 was a punishment. Chase ruled that it was and voted to quash the indictment, but the local district court said no. The issue was certified to the full Supreme Court but the court never reached the merits because President Andrew Johnson issued a full pardon to all participants in the Civil War, including Davis.

"Chase, through the use of Section 3 of the Fourteenth Amendment, saved the nation the pain of making a decision on whether or not secession is treason," wrote Connally.

Chase had a second experience with Section 3 in an 1869 case, In Re Griffin. Caesar Griffin was sentenced to two years in prison for assault with intent to kill by a state judge, a former Confederate officer. Griffin's lawyer argued that the judge was disqualified under Section 3 and that Section 3 was self-executing, which means it didn't need special implementing legislation to be effective.

Chase ruled that the judge was not disqualified because Section 3 was not self-executing. To rule otherwise, Chase knew, would mean all official acts of all ineligible former officers would be null and void. He chose an alternative reading of the section.

Section 3 is not a panacea. There are unanswered questions. If applied to Trump, for example, he might challenge the disqualification on the ground that he did not participate in an "insurrection or rebellion." Courts and eventually the Supreme Court would have to interpret the meaning of those words.

Despite the dust on those shelves, Section 3 is still a part of the 14th Amendment and, historians and legal scholars argue, an attractive option even in modern times.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.