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Small clause, big possibilities
Nearly two years after the January 6 insurrection, the event continues to play a defining role in our country's politics. Former President Donald Trump officially announced his 2024 presidential run last month, but there’s a clause in the Constitution that could bar some officials involved in the insurrection from holding office ever again. This disqualification clause has the power to change the course of elections to come, and could be the method we’ve been searching for to hold powerful, central figures of the insurrection accountable.
In this edition:
- What we now know for sure
- A series of accountability dead ends...
- And an open door
- An action plan for December
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The clause in question is Section 3 of the 14th Amendment of the Constitution. Late last month, my colleagues Vice President of Policy and Government Affairs Liz Hempowicz and Analyst for The Constitution Project at POGO David Janovsky, along with long-time POGO collaborator, attorney, and governance expert Norman Eisen, released an in-depth report on the clause that provides insight and guidance on how officials across the country can use this clause right now. The Bridge will provide a high-level exploration of that report, but you can read the full, more nuanced take on our website.
For more than a year now, the January 6 Committee has been documenting and investigating the attack on the Capitol. This past summer in a series of hearings, it shared its findings with the public, providing clear and thorough evidence of what was attempted that day and who was responsible. But all that documentation and investigation was only a means to the committee’s end goal. Before the end of this month, the committee is slated to release its final report. We hope the committee uses its report to demand actionable accountability for the orchestrators of the insurrection.
The path to accountability for the insurrection’s more powerful participants was challenging from the start. As we know, Congress failed in its attempt to impeach and convict Trump, who the committee found played a central role in the insurrection. What accountability would look like after he and members of his administration who played a central role in the attack had already left office remained unclear.
A promising possibility
This is where that little clause in the Constitution could come in handy. Where other tools of accountability failed, Section 3 of the 14th Amendment can triumph. The disqualification clause prohibits people who’ve sworn to uphold the Constitution who then go on to engage in insurrection against the United States from serving in public office ever again. In the report, my colleagues provide a thorough justification for how this clause is relevant to the events of January 6. In plain terms, this could mean that government officials found to have participated in the January 6 attack on the Capitol would be disqualified from holding public office. And beyond that, they could be disqualified from running for public office at all.
The January 6, 2021, attack led to the first application of this disqualification clause in more than a century. We have never before encountered something like the attack on the Capitol. Because there is such limited history of the clause needing to be enforced, it’s been misconstrued that newer legislation may need to be passed to apply Section 3 to the January 6 attack. This isn’t true. In fact, the legal processes to enforce disqualification are already in place; they just need to be set in motion. As of right now, no congressional action is required to trigger disqualification. This is a ready-to-use tool, made for an instance as dire and consequential as this one. It can be enforced today.
If the committee finds Trump or other former public officials should be disqualified from holding future office, there are several paths to enforcement. At the state level, there are processes to bar declared candidates from even being placed on the ballot and prevent disqualified candidate-elects from swearing the oath of office. On the federal level, an official’s right to hold office can be challenged in the Washington, DC, federal district court. There are also ways to remove disqualified officials from office after they’ve been elected. These processes vary in different states and scenarios; my colleagues go into the nitty-gritty details in the report. However, some state processes are on a more pressing timeline than others — so we don’t have time to waste.
So what now?
The January 6 Committee’s final report will be their last plea before the panel disbands in early January. It’s critical that actionable recommendations for holding powerful participants of the insurrection accountable make the cut. The committee needs to include Section 3 of the 14th Amendment in their report. Along with all the evidence that could implicate the disqualification clause, we’re urging the January 6 Committee to issue clear guidance for enforcing this clause on federal and state levels.
The disqualification clause is our written assurance that the Constitution is on our side in the matter of accountability. No additional legislation is needed. All we need now is to convince the relevant decision-makers of this fact and motivate them to set the legal processes in motion. We think a definitive statement from the January 6 Committee about the applicability of the disqualification clause would be that necessary push.
An attack on our democracy of this magnitude — of any magnitude — simply cannot be written off. Forgoing accountability would essentially open the doors for insurrectionists in the future. It’s imperative that the disqualification clause makes it into the January 6 Committee’s final report.
We’ve communicated our thinking to the committee. Now we’ve got to make sure they pass along the message.