Congress Can Keep Trump from Elected Office with the 14th Amendment

It Stopped Confederate Generals from Holding Public Office

Credit: Dave Whamond, Canada, PoliticalCartoons.com

86ING 45 WITH 14TH IN ONE EASY LESSON:  I don’t claim to be a student of military history, but this much I know: Anyone foolhardy enough to wage war on two fronts at the same time tends to wind up dead in a ditch. Just look what happened to Adolf Hitler, the world’s most bloodthirsty vegetarian, when he invaded Russia and Europe at the same time.

As we get sucked irresistibly into the vortex of an impeachment fight against Donald J. Trump, the American Mussolini, we need to take serious heed. 

Despite claims to the contrary by people who should know better, it is not remotely possible — not in even the most theoretical of universes — that we can miraculously bifurcate our focus, spending half the day focusing on COVID and other challenges facing the new Biden administration and the other half on the high crimes and misdemeanors of which Trump is undeniably guilty. 

Trump’s destructive genius has been his ability to pick fights that Democrats couldn’t hope to win but could not in good conscience walk away from, either. No sentient being could. But there’s a steep price to be paid for not doing so. 


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My point is not that we do nothing or that we give Trump a pass. My point is that there might be other, simpler solutions in plain sight that guarantee Donald Trump can and will never run for elected office again. That, after all, is the point, isn’t it? 

Given how COVID has achieved full thermonuclear meltdown status, we don’t have the luxury of waging what appears to be an unwinnable impeachment fight, no matter how righteous, just, and compelling. Even with many prominent Republicans turning their backs on Trump, chances are still remote that a conviction is possible. So why go there?

It’s a small point, perhaps, but it was just last year on January 20 — the very day Joe Biden will be sworn in as president this year — that the United States identified its very first COVID case. Trump would comment at the time, “It’s one person coming from China. It’s going to be just fine.”

Two days later, the United States would convene Trump’s first impeachment hearing. The outcome was preordained. 

Back then, Santa Barbara County had yet to report its first case. We had yet to argue about banning cruise ships from our harbor. This Tuesday, Santa Barbara County jumped yet another statistical shark. We went from 199 deaths on Monday to 207 on Tuesday.

Lost somewhere in this jumble of mortality statistics is my father-in-law, a complicated and heroic spirit. As I write this, we now have 2,895 active cases. By the time you read this, we will have more. Of those, 211 are sick enough to warrant hospitalization. Of those, 57 are in the ICU.

Health professionals don’t freak. They’re freaking.

Let’s be clear. Trump incited the violence that led to last week’s attack on the Capitol by well-organized right-wing militias and the mob looters who were only too willing to get swept up in the wake of their mayhem. As Congressmember Liz Cheney said in explaining her support for impeaching Trump, “He lit the fuse.” It’s perversely apt, I suppose, that the 42-year-old police officer killed while defending the Capitol would be beaten over the head by an assailant wielding a fire extinguisher. But metaphors don’t kill. Neither, typically, do fire extinguishers. Mobs do. 

When Joe Biden is sworn in as president next week, his inauguration will take place accompanied by 15,000 National Guard members. They will be wearing Kevlar vests able to withstand armor-piercing bullets. They will be armed with M9 handguns. It will be a police state. The FBI, in the meantime, has briefed Congress on multiple right-wing plots to gun them down. The cost of bulletproof vests, they were told, was a reimbursable expense. It’s come to this. 

The point is to repudiate Trump so he can never run for office again. The point is to get as many members of Congress as possible to repudiate him as well. It’s worth noting that the Wall Street Journal, the Economist, the National Chamber of Commerce, and the National Association of Manufacturers have all done so already. 

It’s also worth noting that the ultimate Patriot, Bill Belichick, head coach of the New England Patriots and the winningest coach in all football history, just declined to receive the Medal of Freedom Trump offered him. Belichick, a longtime personal friend of Trump’s, cited last week’s events as the reason. “Above all, I am an American citizen with great reverence for our nation’s values, freedom, and democracy,” he explained.

Even Mitch McConnell has indicated he privately supports impeachment. House Republican leader Kevin McCarthy still opposes impeachment but is giving Republican members a pass to vote their conscience. Given that 147 Republicans voted against ratifying the election results last week — less than a day after the white-wing mob stormed the chambers — I’m far from confident the aforementioned consciences will be found.

Even so, I think Trump is toast. But as an avid fan of vampire movies, I recognize he needs a stake pounded through his heart, lest he come back after the sun goes down. To accomplish that, we don’t need impeachment. We don’t even need criminal prosecution. 

The 14th Amendment, it turns out, already contains explicit language that can accomplish keeping Trump out of public office for life. 

The 14th Amendment, for those who have forgotten, was passed in 1868, shortly after the Civil War, and bestows all the rights of full citizenship on anyone born in the United States. It was enacted with former slaves in mind, but Trump has hated it because it also confers full American citizenship status on the children of immigrants who crossed the border illegally. 

For our purposes, Article 3 of the 14th Amendment is where the action is. It was written to punish Confederate generals and politicians who rose up against the United States by preventing them from ever holding elected office. In cumbersome and clunky but comprehensive and all-encompassing legal lingo, the 14th Amendment states that no one can hold “any office” — state or federal — who “engaged in insurrection or rebellion” against the United States or who gave “aid or comfort to the enemies thereof.”

Bringing this to light was Eric Foner, one of the truly great historians and an expert on the aftermath of the Civil War. To date, this provision has been invoked only one time in American history. It was used to bar Philip Berger, a Milwaukee socialist elected to Congress in 1918, from taking his seat. Berger was then indicted under the Espionage Act of 1917 because he had the temerity to oppose World War I. “You got nothing out of the war but the flu and prohibition,” he would say, referring to great flu pandemic of 1918 that killed 50 million people worldwide. 

If the 14th Amendment could be used to get rid of someone like Berger from the office he won in a certified fair election, them clearly it could be invoked to prevent Trump from ever getting on the ballot again.

The final words say it all: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

We don’t have the mental energy to waste on futile exercises. People are dying. If you want to hit Trump where it hurts, throw the 14th at him. That’s my two cents. Then let’s move on.


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