Congress has the power to block Trump from taking office, but lawmakers must act now
The Constitution provides that an oath-breaking insurrectionist is ineligible to be president. This is the plain wording of Section 3 of the 14th Amendment to the Constitution. “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.” This disability can be removed by a two-thirds vote in each House.
Disqualification is based on insurrection against the Constitution and not the government. The evidence of Donald Trump’s engaging in such insurrection is overwhelming. The matter has been decided in three separate forums, two of which were fully contested with the active participation of Trump’s counsel.
The first fully contested proceeding was Trump’s second impeachment trial. On Jan. 13, 2021, then-President Trump was impeached for “incitement of insurrection.” At the trial in the Senate, seven Republicans joined all Democrats to provide a majority for conviction but failed to reach the two-thirds vote required for removal from office. Inciting insurrection encompasses “engaging in insurrection” against the Constitution “or giving aid and comfort to the enemies thereof,” the grounds for disqualification specified in Section 3.
The second contested proceeding was the Colorado five-day judicial due process hearing where the court “found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.” The Colorado Supreme Court affirmed. On further appeal to the U.S. Supreme Court, the court held that states lack power to disqualify candidates for federal office and that federal legislation was required to enforce Section 3. The court did not address the finding that Trump had engaged in insurrection.
By Evan A. Davis and David M. Schulte
