Power  /  Argument

Impeachment May Not Work. Here’s the Next Best Way to Dump Trump

The 14th Amendment offers a remedy that is both simpler and likelier to work.

The 14th Amendment allows Congress to repeal the bar on officeholding by a two-thirds vote. Congress did this for a good number of individual Confederates who were willing to join the Republican Party and accept the expansion of the rights of African Americans during Reconstruction. One of the most prominent was Gen. James Longstreet, who headed the Metropolitan Police of New Orleans, which battled the White League during the latter’s violent uprising attempting to overthrow the biracial Reconstruction government of Louisiana — a kind of precursor to the events of Jan. 6. In 1872, the House and Senate, in a gesture of reconciliation, removed political disabilities from all but the most prominent former Confederates.

Once Reconstruction ended, Section Three fell into disuse. But it remains in the Constitution. Its language — “no person,” “any office” — makes no exception for the president. Applying the 14th Amendment to Trump via a new law or congressional resolution would require a majority vote in both houses, not two-thirds of the Senate as in the case of impeachment. That means it would rely on fewer GOP members who feel they need to stay on the good side of Trump’s base. It might even be more palatable to Republicans than impeachment, the most infamous and damning answer to a reckless president. Trump would undoubtedly try to veto such a measure, although whether he could legally do so has not been tested. But if Congress acted after the inauguration that threat would disappear. And it wouldn’t require the same rigmarole as an impeachment trial.

Like many parts of the Constitution, Section Three is not self-executing. In 1870, Congress passed a law directing local district attorneys to take steps to oust officeholders barred by Section Three and a number — it is unclear how many — did lose their positions. That law was repealed in 1948. Today, Congress should again specify a procedure for ascertaining to whom Section Three applies. Such a procedure would be a political process, not a full-fledged trial with witnesses and legal briefs, and so could happen quickly. It would have to include safeguards protecting free speech. One of the few times Section Three has been enforced since Reconstruction came in 1918, when the House of Representatives expelled the Wisconsin Socialist Victor Berger. His crime was a far cry from inciting a riot or aiding insurrection — he had been convicted under the Espionage Act because he opposed American participation in World War I. The Supreme Court later overturned his conviction and Berger went on to serve three more terms in the House.