After a vote suggesting that roughly half of the Senate has constitutional or prudential concerns over the trial of former President Trump, senators are discussing censure as an alternative. I previously supported a censure resolution, but this is censure with a twist. Sen. Tim Kaine (D-Va.) would add another controversy to a maddening array of constitutional issues by electorally disqualifying Trump under the 14th Amendment. With the problems of a snap impeachment and a retroactive trial, the country needs another constitutional controversy like Wall Street needs another Reddit stock tip.
Donald Trump wearing a suit and tie: Senate is playing the dangerous game with the 14th Amendment© Getty Images Senate is playing the dangerous game with the 14th Amendment
Censure is not mentioned in the Constitution and is just a resolution expressing the view of Congress. Nevertheless, such a statement can be important in allowing for bipartisan, bicameral condemnation. It is also now seen as a type of shadow impeachment. A Senate trial could actually work to Trump’s advantage if it ended in acquittal. For the first time, the House used a snap impeachment and sent the Senate no record to support its impeachment article. As in past impeachments, the Senate could refuse to call witnesses and vote on the record, or lack thereof. That would mean a brief trial and roughly half of the Senate rejecting the case. That has brought some senators back to censure as the effective equivalent of a conviction.
Part of the controversy of this snap impeachment is using a trial solely for electoral disqualification. The Constitution refers to the trial as deciding whether to remove “the president” – which leads some of us to question the constitutionality of a retroactive trial – while disqualification is an optional punishment available only after removal. Indeed, the Constitution limits the Senate’s power in impeachment trials under Article I to “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Thus, disqualification is linked not just sequentially to removal in the process but as a discretionary penalty in combination with removal.
Retroactive trials remain a close question even for most scholars who have reached conclusions on either side. Now Kaine and others suggest the Senate can avoid the need for a trial (and a required two-thirds vote to convict) but achieve the same result simply by a majority vote on censure.
At issue is the section of the 14th Amendment that bars people from holding office if they “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof.” According to Kaine, his resolution would make “two findings, that it was an insurrection and that President Trump gave aid and comfort to the insurrectionists.” While this clearly would be a workaround of an unattainable impeachment conviction, it would be defended as part of Congress’s authority over any citizen under the 14th Amendment.
This has never been used to bar a former president, and it is not clear Congress has carte blanche authority to bar citizens from office by majority vote. The Constitution refers to people who have been determined to have engaged in treasonous acts and says that “Congress may by a vote of two-thirds of each House, remove such disability.” Thus, under this theory, it would be relatively easy to bar someone from office and declare them traitors – but highly difficult to lift their electoral disqualification. It would flip the burden of the two-thirds vote from a protection for the accused in impeachment trials into a barrier for those disenfranchised by Congress.
Kaine is open about his motivation: “This is an alternative that would impose, in my view, a similar consequence but it does not require a trial and it does not require a two-thirds vote.” However, that is precisely why this tactic is so dangerous. A majority party could bar dozens of its opponents from running for federal office. Some Democrats already are demanding such action against Republicans who challenged Joe Biden’s electoral votes. Such disqualifications are common in authoritarian countries such as Iran, where leaders routinely ban their opponents from office.
Senators such as Kaine may be making the case for Trump by suggesting the 14th Amendment as an alternative to conviction at trial. Academics have echoed this view, and some insist Congress clearly has authority to bar Trump from office. Columbia University professor Eric Foner says Section Three of the 14th Amendment “is very applicable – certainly to Trump himself – and would only require a majority vote in Congress, not two-thirds.” Such statements leave little doubt that the motivation is to achieve the penalty of impeachment without the burden of a conviction.
This would be a case of first impression for a court, but Trump would have a credible case. If he were to prevail, he could cite the decision as vindication and perhaps enhance his claims of being an establishment target. When the 14th Amendment was ratified, it was easy to see its applicability to those who swore allegiance to the Confederacy or fought for it. A court today would face the question of whether Congress has total discretion to make such a finding or whether, as I believe, it is subject to judicial review.
Moreover, the Framers, with their ban on “bills of attainder,” opposed individual punishment meted out by Congress. Such bills were used in Great Britain to punish individuals through Parliament rather than the courts. Years ago, I litigated one of the few successful attainder cases in striking down the “Elizabeth Morgan Act,” which effectively punished my client by stripping him of parental rights. This proposed censure resolution would achieve the same purpose of meting out punishment by popular vote.
Using the 14th Amendment is too clever by half. Our raging politics is blinding many to what could be a dangerous precedent of barring political opponents from office. When many call for blacklists and retaliation against anyone “complicit” with Trump in the last four years, such a power would be ripe for abuse. There is an alternative, which is a censure resolution that can garner overwhelming support as a condemnation rather than a circumvention of impeachment. We can then leave the Constitution alone – and leave Trump’s future to voters and to history.
Jonathan Turley is the Shapiro Professor of Public Interest Law with George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as an expert for the impeachment hearings of Bill Clinton and Donald Trump. Follow him with Twitter @JonathanTurley.