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
The Fourteenth Amendment is an archaic document that should have been rescinded and replaced a century ago. It was one of several amendments the Northern states pushed through and forced Southern states to ratify it in order to be readmitted to the Union. (If the states were in rebellion and secession was illegal, why did they have to be readmitted in the first place?) The fourth section was aimed at preventing former Confederate officers and officials from running for Federal office on the basis of their “insurrection” even though they had joined a new country that had left the United States. By the way, the amendment basically became null when Congress passed an act removing Section Three – CHAP. 389.-An Act To remove the disability imposed by section three of the
Fourteenth Amendment to the Constitution of the Unitedt States.
Be it enacted by the Senate and House of Representatives of the United
tilelmoval of .li.sli- States of America in Congress assembled, That the disability imposed tie, of persns who_ . T a i lanile l-,ga.l, in in- by section three of the Fourteenth Amendment to the Constitution of
‘elrre;,ti L;ins””” t tll
e the United States heretofore incurred is hereby removed. ‘unit-l ‘States.’
Approved, June 6,1898.
Have you ever considered proof-reading?
“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. ”
The hard fact to get around is just how to apply some sort of cause and effect to an awful president who serially broke the law while in office, Jon. Looking forward to what you have to say re lack of evidence when the managers kick off the impeachment trial just by playing the tape(s) of events interspersed with trump’s own words. It’s not as if we have to look deeply to find the sheer illegality, corruption and ineptitude of trump and his administration…
And the truth is, it’s breaking the Repub party in two. The only way they could even manipulate the electoral college was by banding together. Trumpists alone, or ‘establishment’ repubs alone can’t come close to winning on a national basis.
Main thing dems have to do is not split into two factions since four faction breakdowns always end up in trouble. See what happened when the Columbians went there. Or Cuba. Or Afghanistan.
I think the sooner you come to grips with the fact there has to be some consequence for trump’s actions the better off you’ll be, not just as a Fox news mouthpiece, but in maintaining a legal reputation writ large, Jon. I realize the market squeeze is on you guys at Fox because Newsmax and OAN are cutting into your market share…, but now’s the time to salvage the shreds you can.
Elvis Bug
10+
Where is the factual record for the comment “serially broke the law while in office”? Or is there some confusion as to what Biden is doing currently?
Turley – “The suggested use of the 14th Amendment raises serious constitutional concerns …”
***
It appears they don’t really care about the Constitution. But what did you expect? They haven’t hidden their disdain for it for the last couple of decades.
The problem with Turley’s analysis is that he is splitting Solomon’s baby too cleverly. If it’s an overreach to free-associate Trump with insurrection and his supporters in Congress with insurrection, because of priorly adduced reasons that Trump’s speech wasn’t beyond the Democrats’ speech over the past few years, then on what grounds would censure apply?
The big problem is Schumer. End the filibuster which Trump wanted but McConnel blocked. Cheap energy is dead so expect a huge increase in energy costs. DC and Puerto Rico become states and 90+ percent will vote democratic for free stuff and bail outs. Taxes go way up to pay for all the free stuff. Voter registration online so easy to hack and manipulate with the software. Again a massive increase in democratic voters. And finally armed drones flying 24/7 365 to kill any human starting a revolt but only if you are white. Any other color,race or creed are free to loot, burn and kill at will like BLM. Now does this future country sound like a good place to live or not. Welcome to Americas future. All current Americans will be forced to work until you are dead to pay for all the free stuff at 15 bucks an hour. You will not even be able to afford a cheap used small trailer much less food, water and electricity. Sounds like prison life or slave life to me. Maybe I’ll just go to a tattoo parlor and get a full body tattoo medium to dark brown, learn Ebonics and wear an afro wig change my party to far left and live a fake life like an actor does. Sounds like a plan.
Don’t forget to add that Black Lives Matter has been nominated for a 2021 Nobel Peace Prize. I kid you not. Will it now be a “mostly peaceful” Prize? What a disgrace.
Btw, I may look like a ‘white man,’ but under the Biden regime, I identify as an “oppressed person of color” …. now gimme my stuff.
Religion is the opiate of the people.
Politics is the origin of the steeple.
God spelled backwards is dog.
Those who pray in Congress seek to prey on dumb Dems or Repubs. Retards for all.
This raises a question.
In 2022 we have another slew of elections.
Suppose Kaine is right.
If the Republicans take the House and Senate… could they then not censure a slew of Democrats based on the same arguments that they raised against Trump?
Take Maxine Waters. Her rhetoric incited people to get violent w Republicans. To get in their face.
Should she be censured and drummed out of office?
Or Adam Schiff who knowingly lied for 4 years about Trump, POTUS. Anyone who supported the ‘resistance’ movement?
Think about that for a second.
I thought about that for a second. But a second was after the first.
A must read for all voters: “Prelude to McCarthyism, the making of a blacklist” by Robert Justin Goldstein published by The National Archives (www.archives.gov) in 2006. Trump’s extreme wing is now on the receiving end (just switch Republicans for Democrats). This was the treatment prior to “Cointelpro” tactics. McCarthyism was somewhat OVERT then it got worse in the 1950’s with COVERT (and unconstitutional) Cointelpro blacklisting tactics.
In October of 2001, the ACLU warned of a legal environment (created by John Ashcroft/Bush Administration and the then GOP-controlled Congress) for a “Cointelpro-On-Steroids” – likely worse than McCarthyism, worse than the original Cointelpro. Now some Republicans are on the receiving end of what Bush Republicans created. Real life “Frankenstein” created by the GOP. Maybe now we should permanently outlaw these illegal tactics.
As dangerous as the Capitol insurrection was, Cointelpro style blacklisting tactics are a far more dangerous enemy to Americans of both parties. Everyone should urge Congress to outlaw America’s most evil torture program – outlaw Cointelpro.
“…outlaw Cointelpro.”
+1000
https://www.aclu.org/report/report-whats-wrong-fusion-centers
“The Church Committee found that part of the problem with COINTELPRO was that no one
outside the FBI was ever supposed to know it existed.14 No one could object to activities
they weren’t aware of and, as investigators found, “the absence of disapproval” was
“interpreted by the Bureau as sufficient authorization to continue an activity.”15 Secrecy
created a haven from the public eye where abuse could flourish.”
There’s never been any accountability for anyone within the FBI. And there’s no effective oversight.
And COINTELPRO continues, with the help of “good Americans.”
they have other names for it but yet their abusive manipulation of informants and undercovers and provocateurs to create crime is reprehensible
amazing that it turns out they had a “Proud Boys” leader in their fold for years and only now it comes out. Torrio was his name perhaps?
amazing but not surprising
sal sar
PS Sztroke’s wife has been hired to a new plum position in biden admin, payoff for peter’s loyalty and obfuscation of the illegal surveillance and persecution of trump associates
the FBI is shameless
+100
I agree
but the problem with ACLU, among other things, is that they are mostly silent when their perceived political enemies are being gored by the ox
Their storied history of defending illiterate kluckers and the brownshirts in skokie is an overused fig leaf that’s long been shredded to bits
sal sar
all true
LEFTISTS ARE EVIL SCUMBAGS!
RIGHTISTS ARE EVIL SCUMBAGS!
Or perhaps your silly overgeneralization is only that.
Lol!!
Mr. Turley,
Why do you take a functionalist approach to this analysis, but a formalist approach to asserting the unconstitutionality of a post-office impeachment? Where is the textualist analysis of the 14th Amendment as applied to these circumstances here? This appears to be a departure from your usual formalist/textualist perspective, and as you know, if you cherry pick your theories of constitutional interpretation, then they are real just a means to an end.
JT will use whatever analysis method it takes to get the result that he wants.
This column reminds us of Turley’s column on the danger of Trump and the GOP trying to overturn the election results from the states ……..wait. He didn’t write that column? He wrote “Many of us have criticized …..” in another column about CNN or MSNBC instead?
First it was “No snap impeachment..”
Then, “Whoops, it’s too late because he’s not in office anymore…”
Now it’s “No, you can’t do s… because it might be done to somebody else later.”
What a hack. Not hard to figure why he’s the GOP and Fox go to legal “authority”.
You could always set up your own blog and comment on the stories that interest you. Not that anyone would read it.
You could always ignore comments that don’t interest you, Arty.
This latest (outrageous) push PROVES the far left’s Cancel Culture Agenda. However they were able to secure a razor thin majority in the House and Senate AND have an ineffective, senile crook installed as our President, they are now using that to make sweeping changes and SILENCE THE OPPOSITION. I have experienced this same behavior on social media. I am experienced at formal debate. It seems that the left is not at all interested in having THE CONVERSATION anymore. They immediately make moves to personally demean and disenfranchise the opposition. It is a kind of rule-less, no holds barred mentality to discriminate against conservatives and conservative voices. Lies are commonplace now with many liberals citing information they have been set up with from liberal media sources. Partisan, skewed “facts” are thrown around as if they somehow form the base of our Constitutional existence without any productive dialog. I see many liberal operatives involved in “framing” stories to be used to support this concept of Liberal Outrage. Election Fraud is being painted over with a very liberal brush.
horse, I politely and seriously tried to engage you in a decent conversation here several weeks ago and you rebuffed me with Trump/MAGA-speak similar to this post, thinking you were putting me in my place for something – not being in the cult, I suppose Maybe that’s why you think only people like you – as if clearly and generously offering dispassionate dialogue above – are open to “THE CONVERSATION”, whatever that is.
Maybe Horse correctly cancelled you out.
The Left insists on trying to force square pegs into round holes.
Democrats love our democracy so much that they create laws to punish others that are not applicable to themselves.
Reminds me of Stalin.
Allan, can you link to a law that Democrats have created and that punishes others but isn’t applicable to Democrats?
Methinks you have an overactive partisan imagination.
+10
Another pretend friend of Anonymous the Stupid. I wonder how many years since Anonymous the Stupid created this pretend friend because that gives us an idea of how old the pretend friend is and whether or not Anonymous the Stupid is a pretend pedophile.
Anonymous the Stupid, the post you are responding to is absolutely correct. Right now Democrats are trying to twist the laws and their meanings to impeach Trump and prevent the will of the people from prevailing should they want to support another Trump run in 2024.
The statement made above and this statement are not partisan. Both statements reflect the desire for the Rule of Law. Democrats today are acting like petty dictators. This doesn’t mean I wouldn’t criticize Republicans for doing the same thing. I would.
I don’t think you understand what is and what isn’t partisan. But perhaps that is because you don’t have any idea of what the ‘ism’s’ represent.
Allan S. Meyer, the Vile Trolling Pr!ck,
YOU are the SAME person who posted the 9:35 AM comment. LMAO that you say “the post you are responding to is absolutely correct” when you’re talking about your own post, posted anonymously under a different icon. Here’s that same icon admittedly posting as Allan –
https://jonathanturley.org/2020/11/18/is-curing-a-colorable-claim-under-equal-protection/comment-page-2/#comment-2027272
Notice that you didn’t link to a law that Democrats have created and that punishes others but isn’t applicable to Democrats.
Presumably you cannot do this, but you aren’t willing to fess up to it.
Here was my statement: “Right now Democrats are trying to twist the laws and their meanings to impeach Trump and prevent the will of the people from prevailing should they want to support another Trump run in 2024.”
“Notice that you didn’t link to a law that Democrats have created and that punishes others but isn’t applicable to Democrats.”
I’ll provide you a recent law that did that. NYS absolving government officials dealing with Covid from their negligence and reckless neglect. Others are not similarly absolved from similar reckless neglect and negligence.
I take note that the other personality you mention doesn’t respond directly to you. Maybe that alias realizes one dirties themselves dealing with you, Anonymous the Stupid.
You are so Stupid.
Here’s the statement of yours that I was responding to, Allan S. Meyer –
“Democrats love our democracy so much that they create laws to punish others that are not applicable to themselves.”
You posted it anonymously, but you posted it under one of your icons, Allan.
I asked you to link to a law that Democrats have created and that punishes others but isn’t applicable to Democrats, and you now say “I’ll provide you a recent law that did that.” But you haven’t linked to one.
Go ahead: link to the law you’re referring to, so we can read what it says and see whether you’re lying or telling the truth when you claim that it was created “to punish others that are not applicable to themselves.”
Allan/S. Meyer soils the blog with his slop.
Anonymous the Stupid, I provide you with the law. It was recently in the news. You can search for it yourself. I even made mention of the law on this blog.
Boy are you Stupid.
You provided nothing other than your own say so. I’m not going to search for it on your behalf. That’s your job, not mine, Mr. Too-Lazy-To-Do-It-Himself.
Anonymous the Stupid, ask one of your pretend friends. Maybe one of them read a newspaper while you were busy showing everyone how Stupid you were.
AOC said it for the Democrats….”Whatever works!”.
Never mind the Rule of Law or commonsense….the End justifies the Means.
How about you link to what AOC said, so we can see whether you’re being honest about it and what the context was?
Trump continues to live rent free in the heads of Democrats. But what Pelosi and Schumer fail to understand is that while they may be able to destroy a man they won’t be able to destroy an idea.
If you’re as passionate about this, then how come you declined to represent Mr. Trump–and what about the notion of accountability?
“Fools leap where angels fear to tread.”
See Turley’s previous article about hate.
Remember, circumstances always change and what protects Trump today may protect us tomorrow.
Professor, this is the Democratic Party. This is what they want. This is how they think. This is what they do. You can get a sense of what that looks like at street-level by reading the half-dozen or so regulars who post here. Only two have the slightest interest in public policy (and in the case of these two, it’s more of a parody interest). It’s all about abusing their social enemies and the personification of them currently at Mar-a-Lago.
Art You:
Amen, Hate is revelatory. Whom you hate is crystal transparency itself (and cathartic.) Go Dims go. We love the insight in evil.
Mespo, While I realize that we “Dims” are evil untermenschen to you Republicans, it is reassuring to know that you don’t hate us.
JS:
“Mespo, While I realize that we “Dims” are evil untermenschen to you Republicans, it is reassuring to know that you don’t hate us.”
******************************
Don’t like them either. I’m an equally opportunity evil seeker. You might recall my diatribe against Bush’s ” Free Speech Zones.”
mespo727272, are you really so blind to your tendency to project your own weaknesses onto others?