The Senate Is Playing A Dangerous Game With The 14th Amendment

Below is my column in the Hill on the new push to bar former President Donald Trump under the 14th Amendment in a censure resolution. Various commentators and groups have called for dozens of Republican politicians to be barred from office in the same way, including a “how to guide” for  “disqualifying insurrectionists and rebels” under the 14th Amendment. Some have even added a call to put the entire Republican Party on a Domestic Terror list. Rage again has overwhelmed reason. The suggested use of the 14th Amendment raises serious constitutional concerns and could present a compelling basis for a court challenge if actually passed. Indeed, Trump could prevail in court shortly before the 2024 presidential race.

Here is the column:

After a vote suggesting that about half of the Senate has constitutional or prudential concerns over the trial of former President Trump, members are discussing censure as an alternative. I previously supported a censure resolution, but this is censure with a twist. Senator Tim Kaine would add yet another controversy to an array of constitutional issues by electorally barring Trump under the 14th Amendment. With the snap impeachment and a retroactive Senate trial, the country needs another constitutional controversy like Wall Street needs another Reddit stock tip.

Censure is not mentioned in the Constitution because it is a resolution with the view of Congress. Such a statement could allow for bipartisan condemnation. It is also now seen as a type of shadow impeachment. A Senate trial could work to the advantage of Trump if it ends in acquittal. For the first time ever, the House used a snap impeachment and sent the Senate no record to support its article. As before, the Senate can refuse to call witnesses and vote on the record or lack thereof, meaning a brief trial and about half of the Senate rejecting the case. It has led some members back to censure as the effective substitute for conviction.

Part of the controversy of this snap impeachment is using a trial solely for electoral disbarment. The Constitution refers to the trial as to decide on whether to remove “the president” and so that leads some of us to doubt any retroactive trial, while disbarment is an optional punishment for after removal. The Constitution limits the power of the Senate in impeachment trials to “removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

Retroactive trials remain a close issue even for most scholars who have reached conclusions on either side. Now Kaine and others suggest the Senate can avoid the need for the trial but achieve the same result by a majority vote on censure. At issue is the 14th Amendment section that bars people from holding office if they “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof.”

According to Kaine, his censure resolution would make two findings “that it was an insurrection and that President Trump gave aid and comfort to the insurrectionists.” While this would be a workaround of an unattainable impeachment conviction, it would be defended as part of the authority of Congress over any citizen under the 14th Amendment.

This has never been used to disqualify a former president, and it is not clear Congress has carte blanche authority to bar a citizen from office by majority vote. The Constitution refers to individuals determined to have engaged in treasonous acts. Under this theory, it would be relatively easy to disqualify someone from office and declare him a traitor, but difficult to lift their electoral disbarment. Further, it would also flip the burden of the supermajority vote from a protection for the accused in impeachment trials into a barrier for those disenfranchised by Congress.

Kaine is open about his motivation for “an alternative that would impose, in my view, a similar consequence” without a trial and supermajority vote. But that is why this tactic is so dangerous. The party in control could bar dozens of its opponents from running for federal office. Some Democrats are now demanding such action against Republicans who challenged the election of Joe Biden. This is common in authoritarian countries such as Iran, where leaders often bar their opponents from office.

Kaine could be making a case for Trump in claiming the 14th Amendment as an alternative to conviction at trial. Academics have echoed this view, and some insist Congress clearly has authority to bar Trump from office. Columbia University professor Eric Foner says the 14th Amendment “is very applicable” and “would only require a majority vote in Congress.” Such statements leave little doubt that the motivation is to achieve the penalty of impeachment without the burden of a conviction.

It would be a first impression for a court, but Trump would have a credible case. If he were to prevail, he could cite the decision as vindication and perhaps enhance his claims of being an establishment target. When the 14th Amendment was ratified, it was easy to see its applicability to those who swore allegiance to the confederacy or fought for it. A court today would face the issue of whether Congress has total discretion to make such a finding or if, as I believe, it is subject to judicial review.

The Framers, with their ban on bills of attainder, had opposed individual punishment meted out by Congress. Such bills were used in Great Britain to punish individuals through Parliament rather than the courts. Years ago I had litigated one of the few successful bills of attainder cases in striking down the Elizabeth Morgan Act, which punished my client with stripping him of parental rights. This proposed censure resolution would achieve the same purpose to mete out punishment by popular vote.

Using the 14th Amendment is too clever by half. Our raging politics blinds many to what could be a dangerous precedent of barring opponents from office. When many people call for blacklists and retaliation against anyone “complicit” with Trump in the last four years, such a power would be ripe for abuse. There is an alternative, which is a censure resolution that can garner overwhelming support as a bipartisan condemnation rather than a circumvention of impeachment. We can then leave the Constitution alone, and leave the future of Trump to voters and to history.

Jonathan Turley is the Shapiro Professor of Public Interest Law with George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as an expert for the impeachment hearings of Bill Clinton and Donald Trump. Follow him with Twitter @JonathanTurley

514 thoughts on “The Senate Is Playing A Dangerous Game With The 14th Amendment”

  1. “Such statements leave little doubt that the motivation is to achieve the penalty of impeachment without the burden of a conviction”
    You cut to the chase…Thank you
    There is a reason why Con law is mandatory and a not minor elective in First year law school..to prevent just that kind of travesty. Despite so many attorneys in Congress..they seem to have forgotten what equal protection and due process is..Trump does not lose that by being a private citizen, Showing edited videos, retracted statements, no preparation and witnesses..just a quick and dirty snap impeachment that merits a snap dismissal..

    1. Impeachment is a political action, not a judicial one. “Due process” for impeachment is whatever the House and Senate want it to be.

  2. Tim Kaine, VP candidate with HRC, is now trying to preclude Trump from running ever again.

    Well, Russian Collusion birthed by HRC was a LIE; and her sidekick was a part of it.

    So you bar Trump; you must bar HRC and Tim Kaine, which would mean he would have to resign, right?

      1. Still flogging that dead horse.

        I have rebutted every single point before.

        But with each passing month more is known and it is ever more damning.

        The entire genesis of the whole Collusion delusion was russian disinformation provided to the Clinton campaign by Steele.
        Oops.

        In a prior post you about Turley and Fox viewers – and yet YOU are still selling this schlock.

          1. Collusion did not happen.

            The media or the world sought to find it.
            The FBI sought to find it.
            Mueller sought to find it.

            The house and Senate sought to find it.

            No one was able to find what was not there.

      1. The collusion delusion is a LIE.

        That you are still selling it is despicable.

        The source of the story was A russian agent feeding a Russian Stooge feeding Clinton.

        The Collusion delusion is LITERALLY “russian disinformation”

  3. I ask you Mr. Turley which is a more “dangerous precedent” — the one that Trump has already created in lying about election results, causing millions in our country to lose faith in our electoral system; his meddling with electors to try and sway the vote his way against the Will of the People; his interference with the Congress when they attempted to recognize certification by pressuring the Vice President to refuse to recognize? OR, using the 14th Amendment to ensure this man never steps into an election contest again? I think you are well-confused over your “dangerous precedent” standard.

    1. Cuin, Turley isn’t confused, he’s calculating that he can keep up the objective law prof charade while being a team player hack for Trump and Fox.

      1. Nope, he is just slowly getting red pilled by the left.
        When you lost people like Rubin and are slowly losing people like Prof. Haidt, Prof. Turley. Prof. Derschowitz, Prof. Heyer, Prof. Weinstein,
        Glenn Greenwald, Matt Taibbi, Matthew Yglasias.

        or
        JK Rowling, Martina Navratilova,

        The left is intellectually and morally bankrupt.

        1. Rubin is a right-wing buffoon. Dershowitz is a pedophile and dedicated his career to the premise that the rich and powerful must always be above the law. “The left” doesn’t WANT scum like them on our side.

          1. Shin, You have libeled Dershowitz.

            You have no history on the list so for the present I assume you to be one of those on the left that has difficult with consistent coherent arguments and requires help from a new icon.

            Dershowitz wrote a book, I think available on Kindle for free. It details what did and not occur and why what was written about him was wrong. I believe it includes dates with proof that make certain things impossible. Politically he is 180 degrees on the other side of me but that never made me lie about him because despite the difference of opinions he has something to say. Unlike you he is consistent and coherent while being an abundant protector of our civil liberties.

            1. “You have no history on the list so for the present I assume you to be one of those on the [right] that has difficult with consistent coherent arguments and requires help from a new icon.”

              Is that what we should have said when you showed up posting under multiple new icons, Allan?

          2. Rubin started on the left – the FAR Left. He was Red Pilled BY THE LEFT.

            Derschowitz is one of the greatest living constitutional scholars.
            He is also one of the greatest living lawyers.

            Absolutely he has defended the rich. but he has also relentlessly championed individual rights.

            Regardless – Derschowitz has not changed – you, the left have changed.

            We are in the midst of a new maccarthy era and YOU are Sen. joe Macarthy.

            And Derschowitz is still defending the same individual rights he was 50+ years ago.

    2. PS And most of his readers, who are right wing, buy it, because they need to believe it. They actually think he’s a Democrat.

      1. If you read about Turley and listened to what he said about himself along with what others said about him you would realize you are wrong. Is that unusual? No.

        You continue to bat 100% fouls.

      2. There are plenty of posters on the left on this blog.

        They are easy to identify. They are the clueless ones.

              1. Anonymous says:February 9, 2021 at 5:49 PM
                john Say is himself “clueless”

                Reply

                john Say says:February 9, 2021 at 6:40 PM
                Then you should be able to demonstrate that.

                ____

                Why would anyone want to waste their time.

                1. “Why would anyone want to waste their time.”

                  Because defamation is immoral and illegal,
                  because you value your reputation and credibility.

                  Of course those are inherently meaningless to someone posting anonymously.
                  Which is part of why anonymous posts have no credibility

                  1. “because you value your reputation and credibility.”

                    John, Anonymous the Stupid values very little. He is a knucklehead that seldom sees the light of day.

        1. There’s literally no one more clueless than conservatives. Conservatism is at its core the rejection of reality.

          1. Shin, that is why you draw conclusions without facts to back yourself up. What do you prefer over conservatism, Nazism?

          2. I am libertarian not conservative.

            That said Conservatism is quite litterally the presumption that reality is best left as it is.

            Conservatism is the usually correct presumptuion that what works now – even if imperfectly is superior to the unknown, and untested.
            Conservatism is little more than the demand that you prove that you will improve something before you are given power to force your will on others.

            You seem to be incredibly politically ignorant.
            You clearly do not know what conservatism is.

    3. The loss of faith in government – not just the electoral system has been a long time coming.
      It is not the consequence of lies.
      It is a consequence of the behavior of government.

      Of courts making insane decisions that spit in the face of the plain language of the law.

      Of those in government pretending the rest of us are a piggy bank to fund their failed experiments socialism.

      We watched as a lawless politically motivatived investigation bullied private actors to to get them to lie and when they failed to do so manufactured crimes – while those who used the power of government for political ends went unpunished.

      We watched as you rioted, burned and looted our country and went unpunished.

      We watched as you intimidated the courts to ignore the law and constitution to corrupt an election.

      And you wonder why you are not trusted ?

    4. You did not trust government when Trump was president – even though Trump governmed within the law and constitution.

      Why should anyone trust you when you do not ?

      1. No, Trump absolutely did not govern within the law and constitution. He was the most lawless president that the USA has ever seen.

        1. Shin, again conclusions without proof. The sum total of responses from you demonstrate that you know nothing and have nothing worthwhile to say.

        2. Then you would have examples of that.

          It is difficult to deal with those like you – you live in an alternate reality.

          As an example The US has immigration laws. I do not personally agree with all those laws and I would like to change some of them.
          But the laws are what they are.

          Obama did not enforce those immigration laws. In fact he ordered those in govenrment to disobey them. Biden has doubled down on that.
          Conversely Trump ordered DHS to follow those laws as written.

          A president who honors his oath of office must enforce the laws as they are – not as he wishes them to be.

  4. Contra the BS you are delivering – the requirements for robust economics are well understood.

    “Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things. All governments which thwart this natural course, which force things into another channel, or which endeavour to arrest the progress of society at a particular point, are unnatural, and to support themselves are obliged to be oppressive and tyrannical.”
    Adam Smith

    Smith gasped that 250 years ago.
    And all economic data since has proved him right.

    In a study of regulation from 1977-2012 the negative impact of new regulations has reduced GDP growth by about 0.8%/year.

    https://www.mercatus.org/system/files/Coffey-Cumulative-Cost-Regs-v3.pdf

  5. Your article does correctly note that quite often Republicans when in power do not do what they claim.

    When Obama was president – though deficits were too high – Republicans in the House and later Senate actively fought Obama to keep them low.

    Conversely Republicans under Trump lost their focus on Deficits and with the pandemic Republicans and democrats fell over themselves to spend spend spend.

    The increase in national debt under Trump is economically unforgiveable.

    As Reinhart-Rogoff noted – some time ago, increasing debt is a very serious damper on economic growth.

    https://scholar.harvard.edu/files/rogoff/files/growth_in_time_debt_aer.pdf

    i fully expect Biden’s economic policies to be disasterous completely on their own.

    But Trump did leave Biden with a lot of economic problems that Trump would have difficulty fixing himself, and that Biden and democrats do not stand a chance with.

    Our debt is growing – as the debt grows our economic growth will slow.

  6. So you criticise the length of my post in a book lngth post of your own ?

    “What a whopper.” That would be your cut and paste.

    Your own article claims presidents have limited control and then pretends they do not.

    Make up your mind.

    I also figure that complex claims like “non-farm employment growth” since FDR is pretty clearly some kind of stupid cherry picking – if it is even correct.

    The “the economy grows more under democrats that republicans nonsense has been debunked many times”

    But even if you are unable to grasp that, there are more complex issues.

    The economic policies of presidents do not always align well with Party.

    Carter, Reagan, Clinton and Trump were heavily deregulatory.
    While Nixon, Bush, Bush, and Obama were all regulatory nightmares.

    Bad economic choices are not specific to a particularly party.

    I would note that Growth under Reagan, Clinton and Trump was strong,
    Under Nixon, Bush. Bush, and Obama it was weak.

    BTW Alan Blinder is incredibly well respected – by the left.
    If you are after real economics – try elsewhere.

    ” according to a Times analysis”
    When was the least time the Times received an economics nobel ?

    This is another of those idiotic leftist memes – Reporters are supposed to report facts – not opinions.

    I am not interested in economic analysis from the media.

    There are hundreds of economic studies that eviscerate all the policies of the left.
    Rising standard of living is robustly negatively impacted by the scale of govenrment.

    Even YOU posted Obama’s average Growth as 1.8%/year – that is over 8 years. I do not think that any president has EVER done that badly.

    Growth under Trump was not nearly as good as he brags – but it was the best to be had in the 21st century.
    And it likely would have been a full percent better if the media was nto relentlessly pretending that everything was going to hell

    You are loosely correct that on the surface Trump’s job growth was not remarkable.

    What was remarkable about it was that it occured at all. Trump inherited an economy that was in economists terms at full employment.
    It had taken Obama 8 years to recover from a recession – the longest weakest recovery since the great depression.
    But in 8 years Obama had eventually reached what appeared to be “full employment” – or the maximum a stable economy can manage.

    Yet under Trump jobs continued to be added – unemployment went lower. Total employment reached levels that were assumed to be impossible.

    1. “Growth under Trump was not nearly as good as he brags – but it was the best to be had in the 21st century.”

      No it wasn’t. Not even close. By every possible measure, Trump was the worst.

      “It had taken Obama 8 years to recover from a recession – the longest weakest recovery since the great depression.”

      Claiming it took 8 years to recover is a blatant lie. And Obama gave us the most durable recovery in American history. Never before had there been a full 11 years between recessions, until Trump destroyed that recovery.

      “Yet under Trump jobs continued to be added – unemployment went lower. Total employment reached levels that were assumed to be impossible.”

      Under Trump, for the first time since Hoover a president gave us a net LOSS of jobs.

        1. Well if you look up his name, you’d get an idea of what he’s about. From what I’ve read of his comments, he’s not here for rational dialog. He actually reminds me of Jinn, but with a more disruptive intent. In other words, he’s a waste of your time.

          Shinigami are gods or supernatural spirits that invite humans toward death in certain aspects of Japanese religion and culture. Shinigami have been described as monsters, helpers, and creatures of darkness. Shinigami are used for tales and religions in Japanese culture.

          1. Olly, I think there is an excellent chance that Shin is Anonymous the Stupid. Anonymous the Stupid sometimes uses a unique icon and occasionally a name along with all his pretend friends. In this case, the flow of the responses and some of the key sentences make Anonymous the Stupid the likely writer.

            It doesn’t matter for both are Stupid and are not interested in discussion. Anonymous the Stupid is plain dumb. The left has made him that way.

            Anonymous the Stupid can’t stand up for himself. He cannot handle the fact because he relies almost entirely on leftist propaganda that leaves him in a lurch when challenged. The challenge that he doesn’t have a fixed answer for sends him into a quiet rage. He is so biased that he is unable to respond with any credibility.

            1. “Olly, I think there is an excellent chance that Shin is Anonymous the Stupid. ”

              lol

              What an idiot.

            2. I doubt it.

              Shin reaches a degree of idiocy and in your face stupidity that I have not seen even from the most committed leftists here.

              If he thought “the sun rises in the east” was “conservative” he would challenge it.

              1. “I doubt it. Shin reaches a degree of idiocy and in your face stupidity that I have not seen even from the most committed leftists here.”

                Maybe yes maybe no. Not worth the time to think about.

                It doesn’t really matter if they are the same person or not. Independently or together they can be deemed Stupid

                1. “not worth time thinking about”
                  Absolutely agreed.

                  I do not understand the fascination with constant identity changes.

                  In 2009 I posted as AdamSmith on a blog with a reputation system.

                  I managed to build my reputation to their top tier before getting “cancelled” – because the blog’s operators were the same leftist loons that now run twitter etc.

                  I switched to jbsay then and I have been John Say on blogs all over since – except the few times I post under my real name.
                  Usually when I am having problems with a Twitter or FB login.

                  I do not care what others post as. I do not see the fascination in constantly changing names.

                  I have established a reputation as JBSay.

            3. “The challenge that he doesn’t have a fixed answer for sends him into a quiet rage.”

              Hilarious. You’re clueless, S. Meyer.

              You’d never make it as a profiler.

      1. Get a grip on reality.

        Growth under Trump – even including 2020 was better than any other president in the 21st century.

        These are facts, whether you like them or not.
        Trump’s growth prior to 2020 was 50% greater than Obama’s
        Even after 2020 it is still 25% better.

        “Claiming it took 8 years to recover is a blatant lie. And Obama gave us the most durable recovery in American history. Never before had there been a full 11 years between recessions, until Trump destroyed that recovery.”
        Completely false. BTW Obama was only in office for 8 years, I would further note that while 2020 was a bad year economically – there was NO RECESSION. A recession is 3 consecutive quarters of negative growth. 2020 had one really bad quarter and 1 really good one.
        For a net of about Zero. We are however likely heading into a recession. And that will be on Biden.

        As to Obama – he had 8 years of average 1.8% growth. The last time we saw anything that bad was the great depression.

  7. “With John Say’s novelettes”
    Do not mamke so many egregious errors in your posts and my responses will be much shorter.

  8. The biased moderator has been out and about, playing his comment-deletion games during the night.

Leave a Reply