There's a better way to stop President Donald Trump than impeachment and the 25th Amendment — and it's one that even has some Republican support. Though rarely used and often overlooked, the 14th Amendment could be the key to preventing a president who contributed to a domestic terrorist attack from ever receiving a position of public office again.
The 14th Amendment was crafted in times of division not entirely unlike our own.
The president of the United States meets all the criteria for being permanently barred from public office under even a rigid originalist reading of the third section of the 14th Amendment, ratified after the Civil War as a way to expel public officials who sided with Confederate insurrectionists over the union. The 14th Amendment's text plainly states that "no person shall ... hold any office, civil or military," who, "having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof."
The benefit of the 14th Amendment over impeachment is that it allows Democrats to hold Trump accountable without the need to gather a bipartisan supermajority of senators, which lawmakers say is unlikely because Republican obstruction has defined nearly every effort to bind Trump to the rule of law. It also bypasses the challenge of invoking the 25th Amendment, which requires the support of Vice President Mike Pence. The main drawback — the 14th Amendment's lack of a removal clause — could be remedied through well-deserved impeachment, though Trump's departure in a week will make this issue moot.
Invoking the 14th Amendment could well garner more Republican support. On Monday evening, GOP Rep. Tom Reed of New York published an op-ed in The New York Times making his case for avoiding impeachment. "Work with us on constitutionally viable alternatives," Reed pleaded. Those include "censure, criminal proceedings, and actions under the 14th Amendment."
It's fair to be skeptical of Reed, especially in light of most GOP leaders' dogged unwillingness to admit an inkling of responsibility for a crisis of their own making. But there's an underlying point that should be carefully considered: The 14th Amendment was crafted in times of division not entirely unlike our own.
The imminent threat of anti-government violence to post-Civil War legislators accounts in part for the stark clarity with which they wrote the 14th Amendment, especially the section governing what ought to be done with seditionists. Its Republican authors, like Rep. John Bingham of Ohio, witnessed the ruinous outcome of sedition carried to its logical extreme. They understood the solemn value of an oath, in this case the oath of office sworn by our federal officials to defend the Constitution and the United States against all enemies, foreign and domestic. On Jan. 6, too many Republicans didn't honor their oaths — none more so than the president.
"The language in Section Three applies to anybody who has made an oath to the Constitution and then violates that oath," Eric Foner, a Civil War historian and Columbia University professor emeritus, told The Washington Post. "It's pretty simple."
In an op-ed for The Post, Foner laid out the straightforward mechanics of a 14th Amendment charge: Legislators file a resolution, then both chambers vote. In that sense, it would be a triumph of the regular democratic process — the process Trump's thugs tried to undermine — that delivers a final defeat to the president's stained legacy.
The case for applying the language to Trump may also be clearer than that of impeachment, because the 14th Amendment's permanent ban on future public service emphasizes for all future generations the severity of Trump's treachery and doesn't require the Senate to take a separate vote, as during the impeachment process.
That's not to say there won't be challenges to invoking the 14th Amendment. Any effort to hold Trump accountable is likely to face strong Republican opposition, though the extremity of Trump's conduct seems to be fracturing party loyalties. The GOP will also likely challenge the application of such a rarely used piece of legal machinery. The Supreme Court will almost certainly be called to weigh in on the inevitable flood of Republican lawsuits.
These legal debates would eat up time Democrats are loath to spend on the outgoing Oval Office occupant during the critical first weeks of the Biden administration. Realistically, pursuing this path would also rule out an already unlikely impeachment conviction in the Senate, yet with Democrats moving forward on the early stages of impeachment, leadership might be uninterested in shifting approaches.
But our country faces a challenge unlike any it has faced in over a century and a half. Sworn officials, including the president of the United States, engaged in a public and preening show of force against the operations of government. Democrats must take the action that can be applied most quickly and effectively, and the 14th Amendment is the legal remedy that accomplishes that end.
It can be dispiriting to see that the threat of violent antidemocratic terrorism is as real in our enlightened modernity as it was in the wake of the Civil War. But the parallels mean that a constitutional amendment from the 1800s speaks clearly to our present moment. If Congress is wise, it will make use of the tyranny-fighting tools left to us by our political ancestors in the 14th Amendment to hold Trump accountable for his indefensible disloyalty.