(The Hill) — In the year since the Jan. 6 attack on the Capitol, a handful of Democrats, constitutional scholars and pro-democracy advocates have been quietly exploring how a post-Civil War amendment to the Constitution might be used to disqualify former President Donald Trump from holding office again.
Calls for Congress to take steps to strip Trump of his eligibility, which reached a crescendo in the aftermath of the Jan. 6, 2021 riot, have since decreased. But those who remain engaged on the issue say discussions about applying Section 3 of the 14th Amendment have been ongoing.
“If anything, the idea has waxed and waned,” said Laurence Tribe, a constitutional expert at Harvard Law School. “I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”
An analysis by The Hill found that around a dozen Democratic lawmakers have spoken either publicly or privately over the last year about how Section 3 of the 14th Amendment might apply to those who engaged in insurrection on Jan. 6, 2021.
Among those whose offices have spoken recently with Tribe are Rep. Jamie Raskin (D-Md.), who sits on the Jan. 6 House Select Committee; Rep. Jerry Nadler (D-N.Y.), who chairs the powerful House Judiciary Committee; and Rep. Debbie Wasserman Schultz (D-Fla.).
“I continue to explore all legal paths to ensure that the people who tried to subvert our democracy are not in charge of it,” Wasserman Schultz told The Hill.
Nadler and Raskin did not respond to a request for comment.
Section 3 of the 14th Amendment, which was ratified after the Civil War, says that officeholders who “have engaged in insurrection or rebellion against the same” are disqualified from future office.
Raskin, a former constitutional law professor, served as a House manager during Trump’s impeachment trial over his role in the Jan. 6, 2021 attack. Days after Trump’s acquittal in the Senate, Raskin discussed the constitutional provision in a press interview, saying Trump was “right in the bullseye middle of that group.”
“The point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office,” he told ABC News on Feb. 17, 2021, adding that the legal mechanics would require “more research.”
Most constitutional scholars who spoke to The Hill think the provision is not “self-executing.” In practical terms, that means applying Section 3 to Trump would require an additional step by lawmakers to make the 14th Amendment operative.
Some scholars believe that Congress, by a simple majority in both chambers, could act on its own to find Trump engaged in insurrection, which would implicate the constitutional provision. Under the 14th Amendment, restoring Trump’s eligibility would then require a supermajority vote.
Others experts, like Tribe of Harvard, say Congress would need to go further, either by establishing a neutral fact-finding body to determine whether Trump engaged in insurrection under Section 3, or assigning that fact-finding role to a federal court.
One bill, introduced by Rep. Steve Cohen (D-Tenn.) after Trump’s Senate impeachment trial last February, would permit the Attorney General to make the case before a three-judge panel that an officeholder had violated the provision and should be barred from future office.
In addition to legislative discussions, other efforts have focused on pressuring state elections officials with a view toward private litigation over the issue.
One pro-democracy group, Free Speech For People, has mounted a pressure campaign on top state elections officials to apply the 14th Amendment to Trump should he run again. Doing so would effectively bar Trump’s name from appearing on their state’s ballot in 2024.
This summer, the group sent letters to chief election officials for all 50 states and Washington D.C., making the case that they have a constitutional duty to bar Trump from appearing on future state ballots. The group argues the provision doesn’t require additional steps by Congress because the 14th Amendment is already operative by itself.
“Just as states are permitted (if not required) to exclude from the presidential ballot a candidate who is not a natural-born citizen, who is underage, or who has previously been elected twice as president, so too states should exclude from the ballot a candidate, such as Mr. Trump, who previously swore to support the Constitution, but then engaged in insurrection,” their letter to Georgia’s top election official argues.
And if the elections officials don’t comply?
“We intend to litigate this question,” John Bonifaz, the group’s president, told The Hill. “So if a secretary of state does not follow the mandate of Section three, the 14th Amendment, we will bring this matter in court.”
But some scholars think such lawsuits could face serious hurdles and would likely face a challenge in the Supreme Court.
“If a Secretary of State declines to find Trump ineligible, it is far from clear who could challenge that determination,” said Gerard Magliocca, a law professor at Indiana University, who noted that state law varies widely on the issue.
According to Tribe of Harvard, if lawsuits arose over Trump’s eligibility in 2024, the outcome of that litigation would likely hinge on whether or not a neutral fact-finder setup by Congress had previously determined that Trump’s role in the Jan. 6, 2021 attack triggered Section 3 of the 14th Amendment. Absent that, a lawsuit by Trump challenging his exclusion from a ballot would “stand a good chance of success,” he said.
Whether or not a push for Trump’s disqualification under the 14th Amendment gains wider support or more legislative traction may turn on what the Jan. 6 House panel ultimately reveals about his role.
“Once that committee makes clear, as I trust it will, that what took place was indeed an insurrection that triggers Section 3 of the 14th Amendment and that supports criminal prosecution by DOJ of those responsible, it is difficult to imagine this not becoming a logical next step,” Tribe said.
Mike Lillis contributed to this report.