Is America Headed Towards a Constitutional Crisis?
Joshua Burg | February 2021
A glimpse of the US Constitution
Section III of the Fourteenth Amendment states that no individual is to hold public office if they “have engaged in insurrection or rebellion” against the United States. That is, unless permitted by a two-thirds majority vote in both houses of Congress. Democrats have tossed around the idea of invoking this amendment to bar Donald Trump from running for re-election in 2024 if impeachment efforts failed.
In concluding remarks, following the impeachment trial, Senate Minority Leader McConnell stated that Trump was both “practically and morally responsible for provoking the events of the day [January 6th].” McConnell made this statement despite voting to acquit the former president of all charges, claiming that he could not convict Trump since holding an impeachment trial for an ex-president was unconstitutional.
Now, the matter of whether or not impeachment of an ex-president is constitutional was supposed to have been laid to rest after the first day of deliberation, when the Senate voted 56-44 that it was constitutional. Nonetheless, McConnell, and many other Republicans, voted on Trump’s culpability as though it was a second vote on the constitutionality of the impeachment itself.
This leaves us in a precarious position. Suppose Donald Trump were to run for office in 2024, and suppose that it is the case that most congressmen and congresswomen believe Trump was responsible for inciting the insurrection. Would Congress need to invoke the Fourteenth Amendment and hold a vote to allow him to run again for elected office? If criminal charges for inciting the insurrection are brought against Trump, and he is convicted, maybe we can end the conversation here. However, if: 1) Donald Trump is not criminally convicted for his role in the events of January 6th, 2) if Congress has already acquitted Trump of charges of insurrection in the impeachment trial, 3) if the Democrats demand a vote to determine the eligibility of Trump running for president, and 4) if Trump does not get two-thirds of each house to declare him as eligible, can Donald Trump legally run for office without being cleared by Congress? The problem here is that the impeachment trial has declared him not guilty in the charge of inciting the insurrection of January 6th, but a secondary vote in accordance with the 14th Amendment, by the same chamber(s), assumes his guilt.
Furthermore, does the acquittal from the impeachment trial – an acquittal in a trial deemed unconstitutional by the acquitters themselves – vindicate the president from any culpability in fomenting the insurrection? Unfortunately, and in some ways, fortunately, there is no comparable experience in modern US history from which to borrow legal precedent.
It is quite likely that Democrats will attempt to hold a vote to bar Donald Trump from running if he announces plans for re-election. If a Democratic majority initiates the vote and Donald Trump fails to secure two-thirds of both houses, it is quite likely that Trump will claim to have been cleared of any charges of insurrection or sedition when he was put on trial in the Senate. Ultimately, it is very possible that in a few months, or years, we will see a clash between the constitutional power of impeachment and the Fourteenth Amendment that will shape our politics and republic for years to come.
n February 13th, with a vote of 57-43 in the Senate, Donald Trump was acquitted on charges of inciting an insurrection. Various arguments were brought forth by the defense as to why Donald Trump was supposedly blameless for the events of January 6th. However, none seemed to resonate as much with Republicans as the claim that impeaching an ex-president is unconstitutional. If you want to read more about the constitutionality of impeaching an ex-president, feel free to read Thomas Bertron’s article on the matter.