After the President was charged a second time by the House of Representatives for storming the U.S. Capitol last Wednesday, there was some murmur among legal experts and members of Congress about whether Donald Trump could be banned from public office forever if sentenced.
The impeachment process is a slog that is initially characterized by a vote in the house, followed by a trial and a vote on a possible conviction by the Senate. It’s early in the process as the House will vote on Wednesday to charge the president with “inciting insurrection” by a margin of 232-197.
If the president is sentenced by a two-thirds majority in the Senate, the chances are that Trump’s ambitions to hold future political offices will be slammed. According to the language of the Constitution, a person convicted of impeachment may be removed from office or “disqualified from holding and enjoying an office of honor, confidence, or profit in the United States.”
Trump administration time runs out before Joe Biden’s Inauguration on January 20thThe latter option seems more promising for lawmakers looking to prevent the president from possibly accepting the Republican Party’s nomination in 2024. However, the circumstances in this matter are not entirely clear and dry, but are dictated by the interpretation of the Constitution.
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Trump’s disqualification could theoretically come from a simple Senate majority
The impeachment of a president requires a two-thirds majority in the Senate in favor of the conviction. When this is achieved, there should still be a vote on the disqualification. Fortunately for Democrats, there are legal experts who claim disqualification can be taken by simple majority.
Only three officials have ever been expelled from office after being convicted of impeachment. All were federal judges. Two of them, West Humphreys and Thomas Porteous, were convicted and banned after the Senate passed a two-thirds majority vote.
If this were to apply to the president, many legal experts say that disqualification could only take place after a two-thirds majority in the Senate to convict of high crimes and offenses. And given the narrow 50:50 split between Republicans and Democrats in the Chamber, it’s currently unclear whether Trump would even receive such a sentence.
However, there is no uniform agreement among experts on how a disqualification could work. As a new explainer from Reuters Notes:
Paul Campos, professor of constitutional law at the University of Colorado, said he believed a vote to disqualify Trump could take place even if there weren’t enough votes to convict him. The US Supreme Court has made it clear that the Senate has a wide margin of maneuver to determine how to conduct a process, he said.
As Ian Millhiser of Vox noticedThe Supreme Court has not ruled whether a simple majority applies to disqualification if the convicted party has already been removed from office. But there is one tempting argument that can be taken up by the lower criminal courts.
With that in mind, the Senate could play whatever role a judge could play in a minor criminal case. As Millhister writes::
In criminal proceedings, defendants usually enjoy a lot less procedural protection during the judgment phase of their trial than the phase in which their guilt or innocence is determined. In judicial proceedings without a possible death sentence, a defendant must be tried by a jury, but the sentence can be passed by a single judge.
Similar logic could be applied to impeachment proceedings. Before a civil servant is convicted by the Senate, he enjoys increased procedural protection and must be found guilty by a majority decision. However, once they have been convicted, this protection is withdrawn and their sentence can be determined by a simple majority of the Senate.
In the absence of an interpretation given by the Supreme Court, this amounts to mere hypotheses at the moment. Still, the possibility of disqualification for Donald Trump remains real.
Another way: The 14th amendment
A constitutional amendment ratified after the civil war could pose another obstacle for the outgoing president. Section 3 of the 14th Amendment states that any elected official who “has committed insurrection or revolt against the state” may be banned from office.
To trigger the amendment, only a simple majority from both houses would be voted in favor, although an intractable legal battle would likely ensue afterwards. As Kate Shaw, a legal analyst with ABC News, said recentlyQuoting the disqualification amendment would require some litigation and Congress would have to determine what exactly constitutes an “insurrection”.
She said:
I think it would require Congress to pass a law … that says what happened on January 6th before and around it was a riot under the Constitution and with it [Trump] will be disqualified. You would need some insight into why this qualifies as an insurrection. What does insurrection mean in 2021?
It must be reiterated that the whole process is deeply anchored in the interpretation of the Constitution and in the legal maneuvers. Don’t expect the process to be quick.
