Democrats and others wishing to remove President Donald Trump from office before his term expires and prevent him from running again might need to consider resorting to Section 3 of the 14th Amendment to the US Constitution, instead of the 25th, Civil War historian from Columbia University, Eric Foner suggested in an interview with The Washington Post.
Foner said the 14th Amendment popped into his mind as soon as he heard accusations of inciting "insurrection" against Trump. The amendment in question was adopted in the aftermath of the Civil War, the historian's speciality, and was designed to prevent former Confederates from holding official posts.
"No person shall […] hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath […] 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", Foner recited Section 3 of the 14th Amendment, which he believes might apply to Trump's actions on 6 January.
The Columbia University professor said this provision is often overlooked, but noted that many of his fellow historians also wondered if it could be applicable in Trump's case.
'Neutered' Section With No Clear Mechanism
Apart from Trump not engaging in the storming of the Capitol on 6 January and the debatable nature of claims he "gave aid or comfort" to them, there are several other problems with Section 3 of the 14th Amendment.
Unlike Section 4 of the 25th Amendment, Section 3 of the 14th Amendment does not include a distinct mechanism for stripping someone of office under it. Apart from preventing former Confederates from running for office, it was only used once to strip a person of a post.
In 1919, a special House committee revoked the seat of Wisconsin socialist Victor L. Berger, who had legitimately won his election, over his opposition to America'sparticipation in the First World War. However, such a mechanism has never been described in the Constitution or any other law.
A possible reason for this is that Section 3 of the 14th Amendment was effectively "neutered" by Congress just four years after being implemented, Indiana University law school professor Gerard Magliocca explained. Then-US President Ulysses S. Grant argued the amendment hindered the process of the nation's unification after the Civil War. Congress later passed several amnesty acts that allowed ex-Confederates to hold office again, but they stopped short of removing Section 3 altogether.
The latter means it still could be applied to Trump or any congressmen, who supported his claims of election fraud, Magliocca noted. At the very least, it can prevent POTUS from running for office again. To remove him, however, Congress would probably need to pass a majority vote in support of applying it to Trump's recent actions and then pass the matter on to a court, the Indiana University professor suggested.
How Democrats Currently Plan to Remove Trump From Office
In fact, some Democratic House members did raise the possibility of using the 14th Amendment to oust POTUS, accusing him of inciting his supporters to storm the Capitol building and preventing a peaceful transition of power. While Trump indeed doubled down on his election fraud claims, he, in fact, condemned the Capitol Hill violence and pledged to facilitate the peaceful transition.
Democrats continue to pursue attempts to oust POTUS less than two weeks before his term expires and prevent him from holding office again, but instead of using the 14th Amendment, they issued an ultimatum to Vice President Mike Pence on 11 January. They urged him to invoke Section 4 of the 25 Amendment and threatened to impeach President Trump for a second time, if Pence does not do it in 24 hours.
Section 4 allows a vice president to remove a president from office if the VP deems POTUS "unable" to perform his duties. In order to do that, Pence would need the support of the majority of the Cabinet. Trump, in turn, would have the opportunity to contest the decision with Pence and the Cabinet having four days to object. If the vice president and the Cabinet object to the president's claim of being "capable" of governing, Congress would have to resolve the argument between the two in a matter of 21 days.