How Can The 14th Amendment Prevent A Second Trump Presidency

by: M Baqir Mohie El-Deen, MPAC Policy Program Manager

Following the actions that President Trump took after he lost the election to President-elect Biden, many Americans are looking at the options to protect America from Trump seeking a second presidential term in the future. Calls for barring Trump from seeking reelection are coming from both sides of the aisle. Although unconventional for a member of a sitting president’s party to make such calls, it’s not unwarranted. Many Republicans feel that the President hijacked the conservative party and its value, costing them the White House, and both chambers of Congress. Other Republicans may seek to stop an attempt at a second Trump presidency, with their own political ambitions in mind. There are a few options available to keep President Trump out of the White House, which include the Senate voting to keep Trump out of the federal government if they convict him of the charges that he was impeached for this week. There’s also the possibility that Trump can be convicted for criminal charges in the courts as a private citizen in the future, which will impede his ability to seek a second presidency. A third option to bar Trump from seeking office is by invoking the 14th amendment.

What is the 14th Amendment?

The 14th Amendment is part of the Reconstruction amendments that became legislation immediately following the Civil War. It’s more commonly known for its first section, which grants citizenship to all who are born in the United States, regardless of their ethnicity, or how they arrived in the nation. The first section also states “… nor deny to any person within its jurisdiction the equal protection of the laws,” which was considered revolutionary at the time, for it orders the government to protect all people in the United States EQUALLY, regardless of the color of their skin, or heritage, or views. This section of the 14th amendment has been used in a wide variety of landmark Supreme Court cases, including protecting from racial discrimination (Brown v. Board of Education), protecting reproductive rights (Roe v. Wade), in election recounts (Bush v. Gore), protecting from gender discrimination (Reed v. Reed), and protecting from racial quotas in education (University of California v. Bakke).

What the 14th Amendment is less commonly known for is it’s third section, which was drafted to address those who were in public office that were part of the Confederacy, which rebelled against the Union. The goal of the second founding fathers following the Civil War was to prevent any member of the federal government from engaging in behavior that is not in the best interest of the United States, or that would lead to the dissolution of the union.

Section three states:

“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.”

Following President Trump’s actions that many have considered seditious, this section can grant Congress the ability to bar President Trump from ever seeking public office again. Since he swore an oath to support the Constitution of the United States, his attempt to obstruct Congress from exercising its constitutional duty to certify the election results say otherwise. Many are also calling for this section to be used against all public officials that supported the seditious acts that transpired over the past few weeks, which include Sen. Ted Cruz (R-TX), Sen. Josh Hawley (R-MO), Rep. Mo Brooks (R-AL), Rep. Louie Gohmert (R-TX), Rep. Paul Gosar, (R-AZ), Rep. Andy Biggs (R-AZ), and a number of other public servants that have been elected to state legislatures.

Has section three of the 14th Amendment been used before?

The only instance that the 3rd section of the 14th amendment was invoked by Congress was in 1919, when Congress voted to prevent a German-American socialist and newspaper editor, Congressman Victor Berger (SDP-WI), from seeking a congressional seat due to his conviction for the violation of the Espionage Act due to his anti-militarist views. The 14th Amendment prevented Congressmen Berger from joining the House of Representatives in 1919 and again in 1920, however, he appealed his conviction, which the Supreme Court overturned, allowing him to serve an additional three consecutive congressional terms. The Supreme Court ruled that since Berger was not under oath to uphold and protect the United States Constitution when he committed the actions that led to his conviction of the Espionage Act, the conviction cannot be used to expel him from seeking public office.

Will section three of the 14th Amendment be used against President Trump?

Many are asking if Congress will invoke the 14th amendment against President Trump, since the 14th amendment has almost never been used by Congress against those who have taken an oath to protect the Constitution and followed through by committing rebellious acts against the United States government. As was stated earlier, the section was drafted against public officials that were part of the Confederacy’s rebellion against the Union in the Civil War; however very shortly after the 14th Amendment was passed, waivers were granted to almost everyone that served for the South during the Civil War. The possibility of invoking the 14th Amendment against President Trump will remain an open question, and its relevance as an option to protect the United States from a second Trump presidency will be determined, as we wait to see if the U.S. Senate will convict President Trump for the charges that he was impeached for this week, or if President Trump will face any criminal charges as a private citizen following the completion of his term. One thing is certain: the involvement of the courts, which has been packed with conservative judges during the Trump presidency, will definitely be a determining factor if America embarks on this unprecedented journey.