With the president impeached for a second time by the House of Representatives, stemming from his incitement of last Wednesday’s storming of the U.S. Capitol, there’s been certain murmurings among legal experts and members of Congress concerning whether Donald Trump could be forever barred from holding public office again if convicted.
The impeachment process is a slog, characterized first by a vote in the House, followed by a trial and then a vote on potential conviction by the Senate. It’s still early in the process, with the House voting on Wednesday to impeach the president for “incitement of insurrection” by a margin of 232-197.
If the president is convicted by a two-thirds majority in the Senate, it raises the prospect of the door slamming shut on Trump’s ambitions to hold future political office. Per the language of the Constitution, an individual convicted in impeachment proceedings can be removed from office, or subject to “disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
With the Trump administration’s time running out before Joe Biden’s inauguration on January 20, the latter possibility might seem more promising to lawmakers who’ve been eager to bar the president from potentially taking the Republican party’s nomination in 2024. The circumstances surrounding this issue aren’t entirely cut and dry, however, but dictated by Constitutional interpretation.
Trump’s disqualification could come from a simple Senate majority, in theory
A president’s removal from office requires a two-thirds Senate majority vote in favor of conviction. If that’s attained, there’d have to be yet another vote on disqualification. Luckily for Democrats, there are legal experts who assert that disqualification can be levied through a simple majority vote.
Only three officials have ever been disqualified from holding office after impeachment conviction; all of them were federal judges. Two of them, West Humphreys and Thomas Porteous, were convicted and barred after the Senate conducted a two-thirds, supermajority vote.
Of course, if this were to apply to the president, many legal experts say the disqualification could only come after a two-thirds majority in the Senate votes to convict for high crimes and misdemeanors. And given the tight 50-50 split among Republicans and Democrats in the chamber currently, it isn’t clear that Trump would even be dealt such a punishment.
Still, there’s no uniform agreement among experts on how disqualification might work. As a recent explainer from Reuters notes:
Paul Campos, a professor of constitutional law at the University of Colorado, said he believed a vote to disqualify Trump can be held even if there are not enough votes for conviction. The U.S. Supreme Court has made clear that the Senate has wide latitude to determine how it conducts a trial, he said.
As Vox’s Ian Millhiser notes, the Supreme Court hasn’t ruled on whether the simple majority vote applies to disqualification if the convicted party has already been removed from office. But there’s an alluring argument to be taken from the lower criminal courts that may apply.
In this sense, the Senate could fulfill the role that a judge might in a smaller criminal trial. As Millhister writes:
In criminal trials, defendants typically enjoy far fewer procedural protections during the sentencing phase of their trial than they do in the phase that determines their guilt or innocence. In trials not involving a possible death sentence, a defendant must be convicted by a jury, but the sentence can be handed down by a single judge.
A similar logic could be applied to impeachment trials. Before a public official is convicted by the Senate, they enjoy heightened procedural protections and must be found guilty by a supermajority vote. After they are convicted, however, they are stripped of those protections and their sentence may be determined by a simple majority of the Senate.
Absent an interpretation advanced by the Supreme Court, this boils down to mere hypotheticals at the moment. Still, the possibility of disqualification remains real for Donald Trump.
Another avenue: The 14th Amendment
A Constitutional amendment ratified in the aftermath of the Civil War could pose another obstacle for the outgoing president. Section 3 of the 14th Amendment states that any elected official who “engaged in insurrection or rebellion” against the state can be forbidden from holding office.
In order to trigger the amendment, it would only take a simple majority vote in favor by both chambers, though after that, a dogged legal battle would likely ensue. As ABC News legal analyst Kate Shaw recently said, citing the amendment for disqualification would necessitate some litigation, and for Congress to determine what, exactly, constitutes an “insurrection.”
I think it would require Congress to pass a law … saying that what happened on Jan. 6, before it and around it, was insurrection under the Constitution and thus [Trump] is disqualified. They would have to make some findings about why this qualifies as insurrection. What does insurrection mean in 2021?
It bears repeating that the entirety of the process is deeply entrenched in Constitutional interpretation and legal maneuvering. Don’t expect for the proceedings to move swiftly.