According to a report from The Hill, some Democrats have been quietly exploring if they could permanently prevent former President Donald Trump from holding office again, using a post-Civil War amendment.

After the January 6 Capitol riot, calls for Congress to bar Trump from office peaked and have since dwindled. But some are still discussing potentially applying Section 3 of the 14th Amendment.

“If anything, the idea has waxed and waned,” Laurence Tribe, a constitutional expert at Harvard Law School, told the outlet. “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.” 

The Hill reported, “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.”

Recent inquiries include the offices of Rep. Jamie Raskin (D-MD), Rep. Jerry Nadler (D-N.Y.), and Rep. Debbie Wasserman Schultz (D-FL).

“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 outlet.

Section 3 of the 14th Amendment says those who “have engaged in insurrection or rebellion against the same” are disqualified from holding office in the future.

“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,” Raskin told ABC News on February 17, 2021. Raskin, a former constitutional law professor, sits on the January 6 House Select Committee.

From The Hill‘s report:

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. 

Other 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.

Whether a push to use the 14th Amendment to disqualify Trump gains traction may depend on what the House panel ultimately determines about his involvement in the incident, Tribe said.

“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. 

Source:

Democrats quietly explore barring Trump from office over Jan. 6