Eric Foner: “Impeachment may not work. Here’s the next best way to dump Trump.”

Historian Eric Foner in WaPo:

Once Reconstruction ended, Section Three fell into disuse. But it remains in the Constitution. Its language — “no person,” “any office” — makes no exception for the president. Applying the 14th Amendment to Trump via a new law or congressional resolution would require a majority vote in both houses, not two-thirds of the Senate as in the case of impeachment. That means it would rely on fewer GOP members who feel they need to stay on the good side of Trump’s base. It might even be more palatable to Republicans than impeachment, the most infamous and damning answer to a reckless president. Trump would undoubtedly try to veto such a measure, although whether he could legally do so has not been tested. But if Congress acted after the inauguration that threat would disappear. And it wouldn’t require the same rigmarole as an impeachment trial.

Like many parts of the Constitution, Section Three is not self-executing. In 1870, Congress passed a law directing local district attorneys to take steps to oust officeholders barred by Section Three and a number — it is unclear how many — did lose their positions. That law was repealed in 1948. Today, Congress should again specify a procedure for ascertaining to whom Section Three applies. Such a procedure would be a political process, not a full-fledged trial with witnesses and legal briefs, and so could happen quickly. It would have to include safeguards protecting free speech. One of the few times Section Three has been enforced since Reconstruction came in 1918, when the House of Representatives expelled the Wisconsin Socialist Victor Berger. His crime was a far cry from inciting a riot or aiding insurrection — he had been convicted under the Espionage Act because he opposed American participation in World War I. The Supreme Court later overturned his conviction and Berger went on to serve three more terms in the House.

Congress does not have to choose one path or the other. The House can vote to impeach as a statement of principle even though it is probable that a trial will be months away. At the same time, Congress can declare Trump and any other public officials and military veterans who incited or took part in the riot ineligible to hold future public office. They took an oath to defend the Constitution and, on Jan. 6, they violated it. This would be the mildest of punishments for inciting an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election. Such a step would be an affirmation of the vitality of our wounded democracy. Invoking a constitutional provision meant to limit the political power of Confederate leaders would mark an appropriate end to the career of a president who so closely identified himself with the memory of the Confederacy and with a culture of White resentment that reaches all the way back to the overthrow of Reconstruction.


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