OPINION: Donald Trump could be convicted on any number of charges and still be president, but civil litigation to enforce the 14th Amendment’s disqualification clause provides perhaps the best legal safeguard to ensure that he never serves in government again.
Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.
Donald Trump’s 37-count federal indictment for mishandling classified documents and obstruction of justice is the latest in what is expected to be a long year of litigation. Trump is also likely to be indicted on state charges related to his attempts to pressure Georgia election officials to overturn the 2020 presidential election and potentially more federal charges arising from his role in the Jan. 6 attack on the U.S. Capitol.
These legal actions are critical to ensure criminal accountability for Trump’s illegal conduct while serving as president but convictions on any of those charges may not prevent him from assuming the office again. Instead, litigation planned by voters and good government watchdogs to enforce the Constitution against Trump for his role in the insurrection may be the best legal tool available to ensure that Trump never has the power of the presidency, or any government office, ever again.
While the Manhattan district attorney’s false statements indictment related to Trump’s payments to Stormy Daniels involves conduct that mostly occurred before Trump became president and the classified records indictment arises from Trump’s refusal to turn over government records that he illegally retained after leaving the White House, what likely comes next are indictments for the crimes that Trump committed in order to illegally stay in office. Fulton County, Ga., District Attorney Fani Willis will likely announce charges against Trump later this summer, which could include violations of criminal statutes for solicitation to commit election fraud and interference with primaries and elections, among others, based on Trump’s pressure of Secretary of State Brad Raffensperger to find the necessary votes to change the state’s electoral college votes. Then there is the Department of Justice special counsel Jack Smith’s investigation of Trump for election interference and Jan. 6. Smith already secured the testimony of former Vice President Mike Pence and reportedly former Trump chief of staff Mark Meadows, which suggests that this investigation is also nearing conclusion. Despite his criminal exposure, Trump has vowed to stay in the race even if he is convicted, there is technically no legal provision that prevents him from serving as president if that occurs.
In fact, whether Donald Trump can serve as president is unlikely to be settled in a federal criminal trial in Florida or Washington, D.C., but in civil cases brought by private citizens elsewhere to enforce the Constitution against him. section 3 of the 14th Amendment to the Constitution — also known as the disqualification clause — bars any government officer who takes an oath to defend the Constitution and who then engages in an insurrection or aids one against the United States, from ever holding office again. The bipartisan Jan. 6 select committee recommended that officials who pledged an oath to defend the Constitution and then participated in the Jan. 6 insurrection be barred from office pursuant to the disqualification clause. There is ample evidence that Donald Trump is constitutionally disqualified to hold public office ever again.
All three branches of the government have correctly identified the attack on the Capitol as an insurrection, with multiple federal judges, bipartisan majorities in the House and Senate, and the Jan. 6 committee citing Trump as the insurrection’s central cause. Although a criminal conviction is not necessary to be disqualified under Section 3, Trump’s anticipated indictments in Georgia and Smith’s potential charges for Jan. 6-related crimes can only bolster the case for Trump’s constitutional disqualification.
The Reconstruction era includes numerous examples of the disqualification clause’s application. More recently, last year, three New Mexico residents, represented by Citizens for Responsibility and Ethics in Washington, won the first case in more than 150 years that removed an elected official from office for participating in an insurrection. That court ruled that New Mexico County Commissioner Couy Griffin violated section 3 of the 14th Amendment by recruiting rioters to attend Trump’s “wild” effort to overturn the election, normalizing violence and breaching police barriers as part of a weaponized mob that allowed other insurrectionists to overwhelm law enforcement and storm the Capitol. Trump’s role in the Jan. 6 insurrection was even more significant and well-documented than Griffin’s, and CREW has announced plans to pursue his disqualification in court.
Some of Donald Trump’s allies have argued that challenging his eligibility on state ballots is anti-democratic, but it’s Trump’s own illegal attempts to disenfranchise millions of voters on Jan. 6 that have drawn rebukes from federal judges. The Griffin case also cited an NAACP New Mexico State Conference legal brief in dismissing Griffin’s claim that his disqualification would disenfranchise voters. The judge also cited expert legal briefs in rejecting Griffin’s First Amendment defense and attempts to conflate the attack on the Capitol with Black Lives Matter protests. State courts and state officials across the country routinely decide constitutional eligibility questions without incident, including ironically, state court challenges based on the racist birther lie that Trump popularized directed at former President Barack Obama. We can expect to see state challenges by voters to enforce Trump’s disqualification in presidential primaries in the coming year.
Donald Trump’s racism and corruption are a threat to American democracy and Black Americans’ ability to enjoy full citizenship. From Trump’s public advocacy to execute the Exonerated Five, controversial Muslim ban, reference to Black “shithole” countries and support of the “very fine people on both sides” of the deadly Unite the Right Rally in Charlottesville, Va, Trump’s racist practices are well established. The confluence of Trump’s racism and corruption reached its pinnacle when a white supremacist mob, fueled by election lies targeting Black and brown votes in Atlanta, Detroit, Milwaukee, Philadelphia, and Arizona, and Trump’s direction to “fight like hell,” overwhelmed law enforcement and stormed the Capitol in an unprecedented attempt to overturn our election and keep Trump in power. Donald Trump may soon face criminal prosecution for his role on Jan. 6, but civil litigation to enforce the 14th Amendment’s disqualification clause provides perhaps the best legal safeguard to ensure that Trump can never serve in government again.
Carol Anderson is the Charles Howard Candler Professor and Chair of African American Studies at Emory University.
Donald K. Sherman serves as CREW’s Senior Vice President and Chief Counsel. Prior to joining CREW, Sherman served in various roles in the House, Senate, and the Executive Branch including, most recently, as Special Assistant to the President for Racial and Economic Justice in the Biden-Harris White House.
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