The rush to invoke the 25th Amendment of the Constitution against Donald Trump, and even impeach him a second time is heating up. Many in Congress want to ensure that President Trump can never run for a federal office again following the events of last week at the U.S. Capitol.
However, Noah Feldman, professor at Harvard Law School and Constitutional scholar, believes that Trump might already be ineligible to serve as President again. His argument rests with an unknown clause of the 14th Amendment.
Donald Trump might already be ineligible to serve as president of the United States in the future. That’s true even without an impeachment process that ends with a formal ban from future public office.
The relevant constitutional provision is Section 3 of the 14th Amendment, enacted in the aftermath of the Civil War and mentioned in the article of impeachment proposed before the House today. The provision bars a person from holding any office “under the United States” if the person has sworn an oath of allegiance to the Constitution and then “engaged in insurrection or rebellion” against the government or “given aid to the enemies” of the U.S.
Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president.
The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021. Because this is a constitutional question, the courts will have to adjudicate it.
Article 3 of the 14th Amendment reads as follows:
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.
If it can be proven in to the Supreme Court that Trump violated section 3 of the 14th Amendment then he would be barred from every running for a federal office again. This provision was put in to stop former Confederate leaders from running for federal offices.
The biggest hurdle is proving that what Trump did on Jan. 6, 2021 amounts to insurrection or rebellion. Did his speech equate to one of the most serious crimes in American history? According to Trump, his speech was appropriate and analyzed by many to be such. Was he able to insight a domestic insurrection and have his supporters storm down to the Capitol and attack it?
It would take some the nation’s most brilliant legal minds to prove this case in court, but it is doable. From most people’s standpoint, and many in Congress, his speech is the biggest piece of evidence to prove this case.
Answering this question in a constitutional way will not be simple. If this were a criminal prosecution, the First Amendment would apply, and the relevant test would be the one drawn from the landmark 1969 case Brandenburg v. Ohio. The case says that the government can’t punish speech advocating force unless the speech is “directed to inciting or producing imminent lawless action and is likely to produce such action.”
Trump’s Jan. 6 speech is close to the line. On the one hand, circumstances could be read to interpret his words as encouraging the crowd to enter the Capitol forcefully, which was a crime. On the other hand, Trump chose his words very carefully. His direct speech did not call for criminal action in any explicit way. And it would be difficult to prove that he intended the crowd to breach the Capitol. Thus it’s possible that Trump’s words might not meet the Brandenburg standard, if it requires explicit words or proof of intent — and it may well require both.