My colleagues Dan McLaughlin and Andrew C. McCarthy have both written about the possibility that Democrats or progressive lawyers will use Section 3 of the 14th Amendment to disqualify from holding office not just President Trump but Republican lawmakers who objected to counting presidential electors. (Section 3 disqualifies from civil or military office anyone “who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”)
But there is a significant difference between their views.
Dan, who thinks the Senate should try Trump on the article of impeachment that the House has passed, convict him, and disqualify him from holding future office, thinks additionally that Section 3 would not properly apply to Trump, let alone to members of Congress. His point was that the 14th Amendment would be the wrong constitutional tool to use against Trump and also would present a political risk.
Andy, who in a Senate trial would reluctantly vote to convict Trump, would nonetheless prefer for various reasons that the Senate not hold a trial. One of those reasons is that, since the article of impeachment accuses Trump of “incitement of insurrection,” the 14th Amendment might subsequently be invoked against Republican lawmakers who objected to certifying the electoral vote.
I agree with Andy and Dan about what senators should do when the choice confronts them. (The odds of there not being a trial are close to nil, given that Senators McConnell and Schumer both seem to want one.) But I find Dan’s view much more compelling. It’s one thing to say, as Dan in effect does, “Don’t remove Trump via the 14th Amendment, because that would be constitutionally wrong, and moreover would lay the ground for Democrats to use that exact same procedure wrongly again against other officeholders.” It’s another to say, as Andy in effect does, “Don’t hold an impeachment trial and convict Trump even though that would be constitutionally permissible and justified on the merits, because then the Democrats might try to use a different procedure, which would not be justified on the merits, against other officeholders.” I have great respect for Andy, but on this occasion I find his position too unmoored from the question of what would, in fact, be constitutionally sound. In general, I would not want to follow the rule (see §§10, 14) of declining to take a justified course for fear that it will lead to an unjustified course. This would give error a kind of veto power over truth, and could push our politics farther toward being a contest of subjective wills rather than a practice rooted in objectivity.
Of course, one shouldn’t be naïve. But I also think that, as a practical matter, a 50–50 Senate will not be able to take the drastic step of expelling some of its own members. Nor does it seem likely that Speaker Pelosi will find it politically realistic to expel something like a quarter of the House (i.e., the more than half of Republicans who objected to certifying the presidential vote). If Democrats would like Trump convicted, it would serve them well to make clear that they do not plan to create such a political and constitutional crisis. And Senate Republicans who vote to convict can surely state on the record that they are not construing the word “insurrection” in the meaning of Section 3 but rather in its broad everyday sense (which would in turn help constrain courts ruling on any lawsuits that sought to invoke Trump’s conviction as grounds for removing members of Congress under Section 3).
Mitch McConnell had it just right when he spoke on January 6 of “this failed insurrection.” An insurrection, in the common sense, is “an act or instance of revolting against civil authority or an established government.” To revolt, in the relevant common sense, means “to renounce allegiance or subjection (as to a government).” We may assume that the insurrectionists who stormed the Capitol did so with a variety of subjective attitudes, dispositions to commit violence or murder, etc. But they were all there because they had renounced their allegiance to, and their duty to be bound by, our established government in respect of its constitutional procedures for the transition of presidential power. It would be a shame if that basic truth got lost in technical discussions of legal arcana.