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The hidden article of the Constitution that could be the silver bullet against Trump

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Kuldeep Singh
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Article 14 section 3, drawn up after the civil war, prohibits anyone who has taken part in an insurrection from running for president of the United States again.

What to do now with Donald Trump? That is the big question America’s leaders are asking themselves. In the midst of one of the most toxic social climates in memory, with a Capitol fortified to the teeth after the assault perpetrated by hundreds of followers of the tycoon, the Democrats have started the process of ‘impeachment’ to try to end once and for all with their political career.

The resolution presented in the House of Representatives this Monday accuses him of threatening the “integrity of the democratic system”, highlighting the times Trump has tried to delegitimize the elections. “With this conduct, he demonstrated that he will continue to be a threat to national security, democracy and the Constitution,” says the document, which also mentions the president’s call to the Georgia secretary of state in which he asked him to ‘find’ 11,780 votes to reverse the results in that state.

This Democratic attempt would be in line with the majority sentiment in the country: a recent ABC News poll published this Sunday assured that more than half of Americans believe that Congress should remove Trump before his term ends. The goal is for Trump to lose the benefits granted to former presidents, but also to be unable to run for election again in 2024.

The article that would prevent ‘impeachment’

But does it have any signs of prospering? Most of the Republican senators, key to this process passing in the Upper House of the Capitol, have remained silent. CNN sources assure that, unlike in 2019, when the first attempt to shoot down Trump took place and the Republicans joined ranks, now the conservative congressmen are being given freedom to vote so that they “vote according to their conscience.” 

In any case, even when the Democrats win the majority of the Senate after the victory in Georgia last week, there would be several problems that would make impeachment difficult.

The first big problem is constitutional. Some US analysts point out that, with a week to go before Joe Biden is sworn in as the 46th president of the United States, it makes little sense to carry out a new impeachment against Trump, because it is designed to be exercised against presidents who are still in the oval office. And, in the most optimistic calculations, the process would not start until January 19 or 20. 

“The Constitution sees ‘impeachment’ exclusively as a tool to proceed against a president who still is. The ‘impeachment’ is to protect the country, not to punish the criminal ”, write Bruce Ackerman and Gerard Magliocca in the ‘Washington Post’.

This Tuesday, both academics dusted off the Magna Carta to find a constitutional provision that could prevent Trump from running again in the elections without having to repeat the impeachment. And they found it in an amendment dedicated to American citizenship. Section 3 of the 14th Amendment, passed after the end of the civil war, would prohibit Trump from working in any federal office again if it is shown that he “has collaborated in an insurrection or rebellion against the United States Constitution.”

For this, they would need a simple majority in both the House of Representatives and the Senate, unlike in the ‘impeachment’ procedure, in which a two-thirds majority must be gathered. “Congress would have to declare that Trump participated in an act of ‘insurrection or rebellion’ by inciting his followers to attack the Capitol,” both analysts write. This section was enacted after the civil war against any public office supported by the Confederacy, accusing him of having “betrayed his country” and prohibiting him from working in the federal office again.

But this novel constitutional solution also presents problems. To be successful, Congress would have to show that Trump participated in the insurrection, but what exactly does that mean? The Constitution does not give a precise definition and, although most definitions speak of “violence” as a fundamental concept for there to be an insurrection – and in that sense, the events that occurred on January 6 would fulfil it – there would be another obstacle Was Trump inciting an insurrection when he addressed the crowd that had surrounded the Capitol that Wednesday?

For the president, there is no doubt: he had nothing to do with it. “People think what I said was totally appropriate and if you look at what other senior politicians have said about the summer riots in Portland, Seattle and elsewhere, that was the real problem,” Trump said earlier Tuesday before taking off for Texas. On the other hand, the vast majority of Democrats and a few Republicans believe that his words – and in so many speeches in which he aired the ghost of fraud – are the ultimate evidence to kick him out of the White House.

In between, some conservative media believe that even if there are grounds for impeachment, it is better to avoid it. The debate would stall the country in a myriad of lawsuits and counterclaims that would impede the main objective of the Biden Administration: to leave behind the Trump presidency and heal the wounds of the United States.

Conservatives ask to turn the page

The ‘Wall Street Journal‘, last Friday launched a harsh editorial against Trump, said Tuesday that ‘impeachment’ is not the best way to overcome the Trump era. “It will do more harm, by allowing Trump to play the victim role by stigmatizing behavior that the vast majority of Americans already find unacceptable.” However, Murdoch’s newspaper also does not believe that the 14th Amendment is the solution, being an article intended for those who participated in the Confederacy after the civil war.

“No court has found signs of Donald Trump’s insurrection, so Pelosi would be asking Congress to do it themself. They would be kidnapping the 14th amendment to create a path that would forbid Trump from re-showing up, and perhaps with a simple majority—and not with a two-thirds vote required in the ‘impeachment’ clause. That would violate the Constitution in the name of its defense.”

Joe Biden has already given the green light to continue with the ‘impeachment’. At first, he was reluctant because an impeachment, broadcast for months on television networks, could rebound Donald Trump’s popularity and deliver a poisoned gift to the new president. At first, he preferred to focus on his inauguration. But he already seems resigned to accepting the idea and, according to various sources, the impeachment trial is being considered 100 days after Biden was sworn in.

“Could we dedicate half the day to impeachment and the other half to have my people nominated and appointed by the Senate at the same time that we study the stimulus package? That is my hope,” he said, supporting his party’s effort to launch the impeachment against Trump. 

“I think it is extremely important that there is a real and serious effort to hold those who participated in sedition and threatened lives, committed vandalism on private property and caused great damage, accountable,” he said.

The 14th Amendment Against the Rebels

Democratic congresswoman Cori Bush has ensured that section 3 of the 14th amendment could be used against other colleagues of hers who have supported Trump’s campaign to delegitimize the election result. 

“This Monday, I will introduce my resolution to expel the members of Congress who tried to reverse the elections and incited an attempted white supremacist coup that has killed several people. They violated the 14th Amendment,” Bush said on Twitter Sunday. “We cannot have unity without accountability.”

At the end of 2019, Trump was already subjected to an ‘impeachment’ for having pressured a foreign country to obtain damaging information from Hunter Biden, the son of whom he ended up being his rival in the elections. It failed, because the Republican senators supported their president

This time, however, things turn ugly for Trump. Although the ‘impeachment’ does not prosper and the Democrats do not dare to use the 14th Amendment, several courts await Trump for his tax crimes. And if the current president dodges all judicial coups and wants to run again in 2024 as a Republican candidate, his case may go to the Supreme Court.

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