Here's how the 14th Amendment could be used to prevent Trump from running again

trump kudlow oval office — President Donald Trump speaks during an event commemorating the repatriation of Native American remains and artifacts from Finland in the Oval Office of the White House in Washington, DC, September 17, 2020.
SAUL LOEB/AFP via Getty Images

Since the US Capitol siege, some lawmakers have said Trump should be barred from future office.
The 14th Amendment could be the last option lawmakers have to accomplish this goal.
However, legal scholars disagree about how, if at all, the bill could be applied in Trump's case.
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In the wake of the Capitol siege, some US lawmakers have called for President Donald Trump, and some of their congressional colleagues, to be removed from office or prevented from ever holding office again in the future - and they may invoke the 14th Amendment to do it.

The 14th Amendment was adopted in 1868 and is mostly known 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.

However, one section of the amendment 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 now 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 or not 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 that they can bar someone from office just by passing a law with a simple majority in both chambers. Under this scenario, the process would be relatively simple, as Democrats currently have majorities in both the Senate and the House.

But Kalir said that logic directly contradicts 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 ban someone, like Trump, from holding office. Instead, the process would likely require litigation in addition to legislation.

Federal prosecutors are investigating Trump's role in inciting the insurrection on the Capitol, which could, in theory, lead to him being convicted in a court of law.

Such a conviction could give Congress the authority needed to then pass a law barring Trump from office on the premise that he has "engaged in insurrection or rebellion," as the 14th Amendment states.

The amendment was invoked one previous time 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 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 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 says if it were invoked today, it could be challenged in court and ultimately take years to play out.

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