Will the Dems Use the 14th Amendment Against Trump?

Now that we’ve watched the Republican Party sacrifice their principles for the sake of political expediency, let’s see if the Democrats do any better.

Both the GOP’s abdication of moral obligation and the Democrats’ upcoming test are both directly related to Donald Trump’s conduct leading up to last month’s Capitol riots and the appropriate response to that behavior. Few Republican Senators bothered to defend Trump’s incendiary statements that led to the violence of January 6. Instead, most hid behind the ostensibly undecided constitutional question of whether a former president could be impeached as justification for their votes for this former president’s acquittal.

The Democratic House impeachment managers argued as to the importance of not only convicting Trump but banning him from running for public office in the future. They warned that allowing Trump to run again would likely lead to a similar insurrection if he were defeated in a 2024 campaign. Representative Ted Lieu (D-CA) spoke for his colleagues when he said, “You know, I’m not afraid of Donald Trump running again in four years. I’m afraid he’s going to run again and lose. Because he can do this again.”

Lead impeachment manager Jamie Raskin (D-MD) put the question even more starkly. “Is there any political leader in this room who believes that if he is ever allowed by the Senate to get back into the Oval Office, Donald Trump would stop inciting violence to get his way?” Raskin asked. “Would you bet the lives of more police officers on that? Would you bet the safety of your family on that? Would you bet the future of your democracy on that?”

Forty-three Republican Senators apparently are willing to take that bet. But we’ll now see if Democrats will take additional steps to prevent such a wager from being necessary, or if they are satisfied that a good faith effort was sufficient. Because there may be other ways to prevent Trump from running again.

Many constitutional scholars believe that a provision of the 14^th Amendment, passed in the aftermath of the Civil War primarily to ensure that former slaves can not be deprived of their citizenship, could be used here. A lesser-known portion of the amendment bars anyone who has “engaged in insurrection or rebellion” against the United States or who has given “aid and comfort” to its enemies from holding office. This language was drafted to apply to former Confederate leaders, but the impeachment charge against Trump cites his alleged “incitement of insurrection” for his role in the events of January 6. Though the impeachment has concluded, Democrats could now move on to this alternative approach.

The question is whether they will. Public opinion polling shows that while large and growing majorities of Americans strongly disapprove of Trump, they are not nearly as vehement on his impeachment or conviction. These are swing voters who want to see Democrats focus their attention on matters of public policy rather than on an already-disgraced former president. (This is essentially Joe Biden’s position.) By voting to prohibit Trump from running for office again, the Democrats might be sending a message to a key segment of the electorate that revenge against Trump is more important than fighting Covid, promoting job creation and other kitchen-table issues that occupy the attention of most Americans.

Public opinion polling shows that while large and growing majorities of Americans strongly disapprove of Trump, they are not nearly as vehement on his impeachment or conviction.

One added consideration for Democrats considering this move is the Senate filibuster, which requires sixty votes to cut off Senate debate and pass most legislation – including this one. But while convincing 17 Republicans to vote for Trump’s conviction is a very tall order, getting 10 to side with Trump’s critics to allow the vote to proceed seems much more plausible. Seven GOP Senators voted to convict Trump and two others are retiring next year. Several Republicans publicly excoriated Trump even while hiding behind the question of constitutionality, a shield which would not be available on the 14^th Amendment question. So getting to 60 votes is entirely plausible.

Democrats have made it clear that they want Trump barred from office for the good of the nation. Soon we’ll see whether the possibility of political backlash has any impact on their resolve to make another attempt to preserve our safety from the potential danger he represents.

Dan Schnur teaches political communications at UC Berkeley, USC and Pepperdine. He hosts the weekly webinar “Politics in the Time of Coronavirus” for the Los Angeles World Affairs Council & Town Hall.