Earlier in the year, Democrats began pushing the idea that they could ban Donald Trump from being elected president ever again. Last March, for example, The New York Times wrote, “An obscure 19th-century provision of the U.S. Constitution that barred members of the Confederacy from holding political office is back in the national conversation — and some are hoping it can keep Donald J. Trump and his allies off the ballot.
After the Civil War, Congress sought to remake the politics of the states they had just defeated on the battlefield. Fearing that the grandees of the Old South would slink back to power, they crafted Section 3 of the 14th Amendment, known as the Disqualification Clause.
The provision applied to anyone who had previously taken an oath to support the Constitution and then either “engaged in insurrection or rebellion” against the United States or gave “aid or comfort to the enemies thereof.”
Jamie Raskin, a Maryland Democrat, told the Times, “We have to dust it off. It hasn’t been used in more than a century.”
The move is supported by liberals lawyers, as well. Bruce Ackerman and Gerard Magliocca wrote in The Washington Post, “The finding could be accomplished by a simple majority vote of both houses, in contrast to the requirement in impeachment proceedings that the Senate vote to convict by a two-thirds majority. Congress would simply need to declare that Trump engaged in an act of “insurrection or rebellion” by encouraging the attack on the Capitol. Under the 14th Amendment, Trump could run for the White House again only if he were able to persuade a future Congress to, ‘by a vote of two-thirds of each House, remove such disability.’”
Now Democrats are looking at Attorney General Merrick Garland to do the dirty work against their political opponents, something the AG has been happy to so far do.
A week ago, Garland appointed “Jack Smith, a former chief of the Justice Department’s unit that investigates public corruption to “take on the new role which operates largely independent of Justice Department control under decades-old federal regulations. The announcement represents a new phase in the extraordinary investigations into an ex-president and his allies and comes as Trump mounts a new bid to reclaim the presidency,” Politico noted.
‘Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,’ Garland said in a statement. ‘Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.’
The special counsel’s purview will include the Justice Department’s ongoing probe of Trump’s alleged retention of highly sensitive national security secrets at his Mar-a-Lago estate, as well as aspects of the effort by Trump and his allies’ effort to subvert the 2020 election and disrupt the transition of power to President Joe Biden.”
Merrill Matthews, a resident scholar with the Institute for Policy Innovation, offered context for how Democrats might be using federal law to ban Trump from running for the White House a third time. “The amendment and other related statutes provide little guidance, and there are only a few existing precedents. Congress last used Section 3 in 1919 to deny a seat to a congressman accused of “giving aid and comfort” to Germany during World War I, according to the CRS. Thus, applying the amendment to the current situation with a past president’s previous actions, either real or perceived, puts us in uncharted waters.
The CRS does say that Congress could pass legislation that would clarify some of these questions, but the House will be in Republican hands come January. And even though there is a growing number of Republicans who don’t want Trump to run again, it seems extremely unlikely they would vote with Democrats to bar him from returning to office.
In short, it’s likely no one knows how a Fourteenth Amendment challenge would work given the current circumstances. But the CRS does say Congress might enforce the Disqualification Clause by “relying on federal criminal prosecution for insurrection or treason.” That’s where Garland might play a role, and it provides a reason why he would appoint a special counsel.
More importantly, Garland’s actions raise serious questions, not so much about Trump but about the attorney general himself. Having never accepted Trump’s victory in 2016, Democrats have been on a years-long quest to (1) kick him out of office when he was president (hence two impeachment trials and consideration of a Twenty-Fifth Amendment removal) and (2) keep him from ever holding office again.”
Using Garland’s investigation as justification, Rhode Island Congressman David Cicilline has begun leading the charge before Republicans take control of the House in January. Last week, The Providence Journal reported, In a letter sent to his congressional colleagues ahead of Trump’s announcement…Democrat Cicilline cited the section of the 14th Amendment that says:
‘No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States … 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.’
“Given the proof – demonstrated through the January 6th Committee Hearings, the 2021 impeachment trial and other reporting – that Donald Trump engaged in insurrection on January 6th with the intention of overturning the lawful 2020 election results,” Cicilline said. ‘I have drafted legislation that would prevent Donald Trump from holding public office again under the Fourteenth Amendment.’
‘The legislation details testimony and evidence demonstrating how Donald Trump engaged in insurrection against the United States,’ Cicilline said.”
The Rhode Islander had previously encouraged Pence to invoke the 25th Amendment to depose Trump while he was still president.
NEW: I am sending a letter with @RepTedLieu and our colleagues on the House Judiciary Committee, calling on Vice President Pence to invoke the 25th Amendment to remove Donald Trump from office after today’s events. pic.twitter.com/5VK8DLTLn4
— David Cicilline (@davidcicilline) January 7, 2021
Trump allegedly believes that running for president will shield him from any kind of federal prosecution, but that doesn’t mean he still isn’t losing popularity among Republicans. Recent polling that pitted the former president against Florida Governor Ron DeSantis showed that Trump is losing steam for 2024.
CNN recently said, “Nearly 6 in 10 Americans (57%) said it is a bad thing that Trump is running again, while just 34% said it is a good thing.
Six in 10 Republicans said they would like to see DeSantis run for president, while roughly one-quarter said they didn’t.
When asked who they prefer win the 2024 GOP nomination, 44% of Republicans picked DeSantis – the same percentage who chose Trump.”