We the People: Can the 14th Amendment disqualify Trump and others from holding office?

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: How many amendments does the U.S. Constitution have?

The United States Constitution has been amended 27 times in the document’s more than 230 years.

The first 10 amendments to the Constitution are known as the Bill of Rights, which grant basic rights to people living in the United States – free speech, protection from unreasonable search and seizure and the right to have legal representation.

Other constitutional amendments address presidential terms and succession, how senators are elected and who is eligible to vote.

One amendment in particular has gained some attention after the Jan. 6, 2021, attack on the United States Capitol.

The 14th Amendment, ratified in 1868, contains five sections that deal with a wide variety of topics, including birthright citizenship, equal protection under the law and public debt.

Shaakirrah Sanders, professor of law at the University of Idaho and visiting professor at Brooklyn Law School, said the 13th, 14th and 15th amendments all were born out of the end of the Civil War.

The amendments were aimed to prohibit slavery, “effectuate the Union’s victory in the Civil War” to prevent a second civil war and to “effectuate the citizenship of those who were formerly enslaved,” Sanders said.

The provision of the 14th Amendment that has been getting renewed attention addresses who is eligible to serve as a public official in the United States. Section III reads:

“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.”

Simply put, anyone who swore an oath to protect the United States constitution only to commit or support an insurrection or rebellion against the country is barred from serving in a public office, Sanders said. But Congress could act to lift said restriction.

Sanders said Section III was written with the Confederacy in mind. Members of Congress from Union states looked to punish those who previously fought against the country and prevent them from having the privilege of public service. There was also a concern that people from former Confederate states would come into Congress and attempt to undo the progress made as a result of the Civil War.

Criminal charges of insurrection or rebellion established in federal and state statutes identified who the section affects, Sanders said.

“It is not as simple as pointing to someone and saying, ‘You’ve been engaged in an insurrection or a rebellion,’ ” Sanders said. “There would have to be some type of criminal conviction, some type of formal filing that, you have engaged in this activity and therefore you are now ineligible to run.”

As time went on, Sanders said, Confederate sympathizers found their way to power and eventually Congress lifted the restrictions on individuals associated with the Confederacy. That allowed pro-Jim Crow individuals to take control and usher in a new era of segregation and inequality, Sanders said.

Some people, citing Section III, have initiated moves to disqualify officials viewed as having ties with the Jan. 6 attack from holding public office.

Voters in North Carolina and Indiana mounted efforts to disqualify GOP Reps. Madison Cawthorn and Jim Banks, respectively, from re-election in November. The effort against Banks was thrown out by the state’s election commission. The effort against Cawthorn hit a snag due to congressional redistricting, but supporters of the disqualification effort vowed to refile their objection.

Others have argued that former President Donald Trump could be disqualified under Section III. Those calls followed the conclusion of Trump’s second impeachment trial, and more recently as the House Select Committee on the Jan. 6 Attack works to uncover the roots of the assault on the Capitol.

But could Section III really be used against Trump and other lawmakers who are revealed to have ties to the attack on the Capitol?

It’s possible. But, as with anything involving the law, it is complex.

There is no doubt, Sanders said, that what happened at the U.S. Capitol on Jan. 6 amounts to an insurrection or rebellion. The issue isn’t about people at the rally preceding the attack or even those who marched to the Capitol, but those who broke in and entered the building threatening the lives of elected officials, Sanders said.

“There is no more clear definition of insurrection and rebellion than those who were there for that purpose – to break and enter into the U.S. Capitol during the time in which both houses of Congress are engaged in an official constitutional process of counting the electoral college votes,” Sanders said.

Challenging a candidate’s qualification to appear on a ballot based on insurrection or rebellious acts likely would involve a court, Sanders said. As a legal matter, a judge would rule on the challenge based on the actual evidence, not just an accusation.

“The trial judge could say, ‘I don’t think this is a legitimate challenge.’ A jury could say, ‘We don’t think the evidence is there,’ ” Sanders said. “That legal process would have to play itself out because I don’t think an accusation would be enough to get a conviction.”

Alternatively, if a 14th Amendment challenge is struck down, voters ultimately have the power to choose whether that person is still worthy to represent them.

“It could be that whatever comes out of the Jan. 6 committees is enough to persuade the voters not to put an individual into office,” Sanders said.

If a person is still voted in, they could still be removed from office, Sanders said. For members of Congress, internal mechanisms allow for the House of Representatives or Senate to expel their own colleagues. For the president, vice president or other executive branch officials, Congress can initiate impeachment proceedings for removal from office, but the votes have to be there for both moves.

“They do have the power to control their own membership – you can be expelled from Congress,” Sanders said. The Constitution grants Congress impeachment power “just in case the people elected someone who was unfit for office.”

Within those three options of candidacy disqualification, being voted out and being kicked out, there is some room for appeals and other legal challenges.

Complicating the matter further is that new information about Jan. 6 is being revealed by the House Select Committee every day.

Evidence needed for a successful candidacy challenge may not be available at this time.

Aside from the Civil War, there is also not much guidance on how to go about disqualifying anyone from running for office.

While it is possible to disqualify a candidate for their connection to an insurrection or rebellion, mounting that challenge could become a lengthy, unprecedented legal battle.