by Joseph Klein
If Senate impeachment trial fails.
With the Senate impeachment trial underway that is virtually certain to end in acquittal, the Democrats are already planning their next move against Donald Trump. They are looking to use an obscure clause in the Fourteenth Amendment of the Constitution, written in the aftermath of the Civil War and aimed at disqualifying ex-Confederate rebels from public office, to bar Trump from holding any future public office. Section 3 of the Fourteenth Amendment allows for the disqualification of individuals from holding federal or state office who both previously (1) took an oath to support the U.S. Constitution as a federal or state government legislator or officer, and (2) then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The Democrats leading the charge on the Fourteenth Amendment gambit include Senators Tim Kaine of Virginia, Sheldon Whitehouse of Rhode Island, and Dick Durbin of Illinois, along with Representatives Debbie Wasserman Schultz of Florida and Steve Cohen of Tennessee. They are being advised by leftist academics who believe that Congress has the unilateral power to pass a joint resolution invoking the Fourteenth Amendment’s disqualification provision against Trump. As far as the Trump-haters are concerned, it is perfectly all right to put aside due process and fundamental fairness, so long as Trump is barred from holding public office ever again.
The Democrats’ unconstitutional Senate show trial is bad enough. The House’s lead impeachment manager has even gone so far as to suggest that Trump’s refusal to testify be used as an inference of guilt – precisely the opposite of the presumption of innocence and the Fifth Amendment’s protection against self-incrimination. But even that is not enough for the Trump-haters. Assuming the likely outcome of acquittal in the Senate impeachment trial on the incitement of insurrection charge, the Democrats want to further upend the Constitution by taking another bite at the apple. This time they want to do so by majority vote of both Democrat-controlled chambers under a perverted reading of the Fourteenth Amendment. They have one insurmountable problem. The Constitution includes a specific provision prohibiting bills of attainder (Article I, Section 9, paragraph 3).
Bills of attainder have been described by the Supreme Court as legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. . . .” The Court explained the rationale for prohibiting such bills of attainder in a case that dealt specifically with a statute barring certain individuals Congress deemed guilty of “subversive activities” from ever engaging in any federal government work, except as jurors or soldiers:
Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.
Section 3 of the Fourteenth Amendment was obviously written with those who served in the Confederacy’s military or government in mind. If ex-Confederates had previously taken an oath to support the U.S. Constitution and then engaged in “insurrection or rebellion” against the Constitution, they were automatically disqualified from serving in any federal or state office. There was an escape hatch. Congress could, by a vote of two-thirds of each chamber, remove the disqualification. Unless Trump has a time machine at his disposal, he was not an insurrectionist or rebel during the Civil War.
Congress has the power under the Fourteenth Amendment “to enforce, by appropriate legislation” its provisions. But this authority does not override or amend the Constitution’s bill of attainder clause.
What Congress can do is pass legislation criminalizing insurrection or rebellion, which is precisely what it has done (18 U.S. Code § 2383 - Rebellion or insurrection). A violation of the law can result in fines, imprisonment, and disqualification from “holding any office under the United States.”
Section 3 of the Fourteenth Amendment would extend that penalty to also bar individuals convicted of insurrection or rebellion, who had taken an oath to support the U.S. Constitution, from holding a state government office as well. However, The Fourteenth Amendment’s disqualification clause would kick in only if Trump is first convicted of insurrection or rebellion in a court of law with full due process. Moreover, it would be a complete travesty of justice to say the least if Trump is acquitted in the Senate impeachment trial, only to then be disqualified from public office anyway by a joint congressional resolution.
There is a fundamental principle at stake here. The Democrats plotting yet another way to bar Donald Trump from holding any future public office are seeking retribution against Trump by any means they consider necessary. They believe that the end justifies the means. But that is not how the U.S. Constitution works. It has guardrails against abuses of power that trample on the rights of individuals. The Trump-haters’ obsession with the former president is so intense that they would first abuse the constitutional impeachment process and then twist the Fourteenth Amendment to prevent Trump from ever holding federal office again. This is an affront to the Constitution and to the right of voters to cast their votes for the candidate of their choice.
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