- After the Capitol riot, some suggested the 14th Amendment could bar Trump from future office.
- Interest in the possibility was renewed after Trump announced plans to run for president in 2024.
- Legal scholars disagree about how, if at all, the bill could be applied in Trump's case.
In the wake of the Capitol siege on January 6, 2021, some US lawmakers called for former President Donald Trump and some of their congressional colleagues to be removed from office or prevented from holding office again — and invoking the 14th Amendment was being floated as one way to go about it.
Trump on Tuesday announced plans to run for president in 2024, which would mark his third consecutive presidential run, ignoring those on the right who have blamed him for the GOP's disappointing performance in the midterm elections.
The announcement has renewed interest in whether or not the 14th Amendment could be used to prevent Trump from running again.
Adopted in 1868, the 14th Amendment is known mostly for granting citizenship rights and equal protection under the law to anyone born or naturalized in the US, including Black people and those formerly enslaved.
The amendment nullified the 1857 Supreme Court decision Dred Scott v. Sandford, which held that people of African descent could not be US citizens.
One section of the amendment, however, blocks someone from holding office who, having previously made an oath to the Constitution, has "engaged in insurrection or rebellion" against the US.
Originally designed to prevent Confederates from serving in public office, it could prevent Trump from running again
The intent at the time was to influence the government in the South by barring Confederates from serving in public office after the Civil War. "The idea was that office holders of the United States will not be people who were treasonous to the United States," Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider.
Here's the full text of Section 3 of the 14th Amendment:
"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, 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. But Congress may by a vote of two-thirds of each House, remove such disability."
There are differing opinions among legal scholars on whether the amendment could actually be used in Trump's case and, if it were to be used, how exactly it would play out.
How it could be used against Trump
One uncertainty is whether the text can be applied to the office of the presidency. While it lists senators, representatives, and electors as positions from which a person could be barred, the presidency is not explicitly named.
"I'm not sure it applies to the president of the United States at all," Kalir told Insider, adding that it's unlikely the authors would have named those offices but not the presidency itself if they intended for it to apply.
More likely, he said, the section is meant to apply to senators and offices below that.
There is also uncertainty over exactly what the process would be for invoking the amendment to remove someone from office.
"It is not clear who should make the determination that the person has engaged in insurrection or rebellion against the United States," Kalir said.
Some legal scholars think Congress itself can make that call and can bar someone from office just by passing a law with a simple majority in both chambers. Under this scenario, the process could be relatively simple, as Democrats have majorities in both chambers, however after the newly elected members of Congress are instated the GOP will have a majority in the House.
The House select committee has been investigating Trump's role in the Capitol riot, but that panel is set to dissolve at the end of the year and is unlikely to be renewed in a Republican-controlled House.
Plus, Kalir said that logic contradicted another section of the Constitution that effectively blocks Congress from acting as a court of law. Therefore, some scholars don't think Congress alone can use the 14th Amendment to bar someone, like Trump, from holding office. Instead, the process would most likely require litigation in addition to legislation.
Federal prosecutors are investigating Trump's role inciting the Capitol insurrection, which could, in theory, lead to his being convicted in a court of law.
Such a conviction could give Congress the authority to pass a law barring Trump from office on the premise that he had "engaged in insurrection or rebellion," as the 14th Amendment states. But again, with a split Congress, such a bill would be highly unlikely to pass.
The amendment was invoked one time in more than a century to bar someone from office
There is some historical precedent, as the amendment has been used to bar someone from office — but only once in more than a century.
In 1919, Congress used the 14th Amendment to bar Victor Berger, a socialist from Wisconsin and an elected official, from joining the House because he actively opposed the US entering World War I.
In that case, a special committee convened and concluded that Berger was unfit for office. He was then barred by a simple majority in the Senate and the House. Because of this, some believe congressional precedent shows only a simple majority is needed.
But Congress barring someone from joining its own body is notably different, Kalir said.
"To think that the US Congress could prevent someone from becoming president of the United States other than through impeachment is big — it's a big legal leap."
Berger's case was also 102 years ago, and there has been no use of this section since.
Kalir said if it were invoked today, it could be challenged in court and ultimately take years to play out.
