As part of a thoughtful discussion of Trump’s status under section 3 of the Fourteenth Amendment on this week’s episode of Slate’s Political Gabfest, the point was made that the impeachment process is the Constitution’s method for disqualifying a president who engages in the kind of assault on democracy that Trump did. I agree that it would have been far better if ten more Republican Senators had voted to convict Trump in his second impeachment trial, to reach the 67 necessary for a conviction. But I disagree with any suggestion that the impeachment process is the exclusive mechanism under the Constitution for disqualification.

Returning to historical examples proves this point. Vice President John Breckinridge was never impeached for his disloyalty to the United States in joining the Confederacy, but he was clearly disqualified from holding office again, including the presidency, by section 3 of the Fourteenth Amendment. The question of whether Clement Vallandigham was disqualified by section 3 because of his apparent role in a pro-Confederate conspiracy is more debatable and would need to have been adjudicated in some judicial proceeding consistent with due process, but the fact that Vallandigham had never been impeached would not have been a bar to his disqualification under section 3. Indeed, insofar as Vallandigham was a member of Congress and not a member of the federal executive or judiciary, it’s very doubtful that the impeachment process would have applied to him. Section 3 of the Fourteenth Amendment also disqualifies insurrectionist officers (or former officers) of a state government who have sworn an oath to uphold the U.S. Constitution, and the federal impeachment procedure obviously does not apply to those state government officials.

There does need to be a suitable judicial procedure for making disqualification determinations under section 3. Not every case, either at the time of Civil War and certainly not now, is as obvious as Breckinridge’s disqualification, for which “judicial notice” in any court proceeding would have been appropriate. Nor is it automatic that existing state procedures are suitable for this kind of disqualification determination, which is why I argued in my Washington Post column that state legislatures ought to examine their existing procedures to see if they need clarification or supplementation.

There is one existing procedure, apart from impeachment, where disqualification could occur. And, like the impeachment process, it would be a political (as well as legal) judgment made by sitting members of Congress. That procedure is the joint session of Congress where the electoral votes are counted and the winner officially declared. Moreover, under the procedures of the new Electoral Count Reform Act, it takes only a majority vote of both houses of Congress–and not two-thirds of the Senate–to object to electoral votes as “not have been regularly given” because they were cast for a disqualified candidate. Moreover, filibuster rules do not apply to each chamber’s deliberations pursuant to the Twelfth Amendment joint session.

But it would be a disaster of monumental proportions for Congress to disqualify Trump on January 6, 2025, after he won the requisite number of electoral votes based on popular vote victories in enough states. Would Congress even consider doing this? We can only speculate, but members of Congress themselves take an oath to uphold the Constitution, and if any member of Congress sincerely believes that Trump is disqualified under section 3–as many of them must, who already voted to impeach or convict him for his role in the January 6, 2021 attack on the Capitol–then it seems that there is a nontrivial chance there would be a congressional debate on the disqualification issue on January 6, 2025, if Trump has achieved an Electoral College victory.

To my mind, the risk of this occurring remains a reason to hope that there is a procedure that enables the U.S. Supreme Court to adjudicate the disqualification issue one way or another before ballots are cast in November of next year–so that Congress does not feel empowered to decide the disqualification issue differently after the election.

Brief clip emphasizing the timing point–the need to resolve this issue definitively before the election and not afterwards.

Boston Globe (behind paywall). Some excerpts:

“Secretary of State David Scanlan, who will oversee the first-in-the-nation presidential primary in just five months, said he’s received several letters lately that urge him to take action based on a legal theory that claims the Constitution empowers him to block Trump from the ballot.

“Scanlan, a Republican, said he’s listening and will seek legal advice to ensure that his team thoroughly understands the arguments at play. …

“‘I have some in-house staff attorneys that are election experts,” he said. ‘I will be asking the attorney general’s office for their input. And ultimately whatever is decided is probably going to require some judicial input.’” …

“Here in New Hampshire, the GOP’s 2020 nominee for the first congressional district, attorney Bryant “Corky” Messner, said in a radio interview Monday that he read about the legal theory and is now thinking about suing to ensure that Scanlan enforces the Constitution against Trump.

“Scanlan said the former president — who faces four criminal indictments, including two that pertain to his attempts to subvert democracy after the 2020 election — is entitled to due process. And he said judges are better equipped than he currently is to determine whether the campaign that culminated in violence at the US Capitol on Jan. 6, 2021, triggers the 14th Amendment.

“’I view the violence as being a really unfortunate event in our history,” he said. “I don’t know that I’m really qualified to say whether that was an ‘insurrection’ or not. I think that is for the courts to decide’.”