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It seems widely agreed upon that even if a President breaks a law, he can only be removed from office through the impeachment process.

However, could an incumbent president who wins a second term be kept from being seated due to the 14th amendment (section 3)? It reads (emphasis mine):

Section. 3. 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.

Apologies because this is a multi-part, not-straightforward question:

  1. Does the above bolded part correspond to breaking any specific laws? That is, how would one show that a person engaged in insurrection or rebellion, or given comfort to enemies?
  2. If this could be demonstrated by finding someone guilty of a particular law, in theory couldn't someone bring federal charges against Trump for doing so? (assuming one of his many bad faith acts like cooperating with Russian election interference, or tweeting classified information appeared to be breaking said law).
  3. Couldn't this happen even if a Republican controlled senate decided not to remove him from office after being impeached? That is, even if it wouldn't cause him to be removed from office, couldn't he, separate from impeachment, be convicted of a crime while still holding office?
  4. If he was found convicted of a crime which fit the above bolded passage (and didn't engage in some shenanigans like pardoning himself), who would keep him from taking office? (i.e. enforce the law).

I apologize if I'm grossly misinterpreting things here. My background knowledge is just from Wikipedia and constitution.findlaw.com, and I couldn't find any articles dealing with Trump and the 14th amendment, section 3 (all results were about him trying to unilaterally change citizenship laws, so for a different section).

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2 Answers 2

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I apologize if I'm grossly misinterpreting things here.

You are grossly misinterpreting things here. Your mistakes aren't terribly uncommon, but you are completely and totally wrong in what you are suggesting.

Does the above bolded part correspond to breaking any specific laws? That is, how would one show that a person engaged in insurrection or rebellion, or given comfort to enemies?

The language intentionally mimics the only crime defined in the U.S. Constitution, which is treason, defined in U.S. Constitution, Article III.

If this could be demonstrated by finding someone guilty of a particular law, in theory couldn't someone bring federal charges against Trump for doing so? (assuming one of his many bad faith acts like cooperating with Russian election interference, or tweeting classified information appeared to be breaking said law).

None of the things you imagine could constitute treason. 'Enemy" is a term of art that means a country that the United States is actually at war with, militarily, by providing aid and comfort to the other side that aides them in waging war with the U.S.

Cooperating with Russian election interference isn't treason. Inaction isn't treason. The President probably has an absolute legal right to disclose information that is classified for national security purposes. The President is immune from civil and criminal liability for his official acts while he is President.

If the President, from his private funds, and not as part of his officially duties, personally paid Taliban soldiers bounties to shoot and kill American soldiers, that might be treason (since the U.S. is at war, within the meaning of the treason statute, with the Taliban). Cooperating with Russia, despite the fact that it has done so is not treason.

Even then, federal prosecutors would not press these federal charges against the President while the President was in office. And, the President would be immune, in all probability, to state treason charges for conduct while in office. So the President would have to be prosecuted after leaving office. On the other hand, Section 3 of the 14th Amendment does not require a criminal conviction to be effective.

The intent of Section 3 of the 14th Amendment was to deny civil rights in the post-Civil War governments of the United States by Confederate officials and military officers. In practice, Congress used the authority it was granted to remove political disabilities from all but about 500 of the hundreds of thousands or millions of people eligible for this treatment under the 14th Amendment.

Couldn't this happen even if a Republican controlled senate decided not to remove him from office after being impeached? That is, even if it wouldn't cause him to be removed from office, couldn't he, separate from impeachment, be convicted of a crime while still holding office?

The federal government prosecutes treason. Ultimately, the President is the one who decides whom the federal government prosecutes. So, the President as a practical matter could not be convicted of treason while still holding office, even if he committed acts which actually constitute treason, unlike anything could be plausibly alleged in this case.

If he was found convicted of a crime which fit the above bolded passage (and didn't engage in some shenanigans like pardoning himself), who would keep him from taking office? (i.e. enforce the law).

A future President can pardon the crime of treason by a former President. Ford pardoned Nixon of crimes that Nixon committed, and many Presidents have pardoned treason convictions at times close to the adoption of the U.S. Constitution and to the adoption of the 14th Amendment. But this just can't come up in this case. You'd need a treason to have been committed before someone was elected.

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    Thanks for the clearing things up for me with the detailed answer
    – spacetyper
    Commented Oct 7, 2020 at 13:32
  • So would it be fair to summarize this by saying in modern-day terms, this section would only apply to persons actually convicted of treason?
    – Michael
    Commented Aug 10, 2022 at 21:27
  • in a strange way, the very situation asked by OP comes to pass at the moment with trials trying to pull Mr. Truml off the ballot in muliple states for insurrection... might there be an update needed?
    – Trish
    Commented Dec 15, 2023 at 22:38
  • @Michael No. A civil determination can be made that a person is not eligible under Section 3 of the 14th Amendment. A criminal conviction is not necessary.
    – ohwilleke
    Commented Dec 15, 2023 at 22:52
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This question had only 1 answer prior to 2021-01-06, and circumstances changed on that day. There have also been related cases since, and more things that have come to light.

Yes, Donald Trump now could be prevented from taking office, but it would require several things which are not, at this point, givens, and it relies on a different law to Amendment 14 § 3, and that law might not result in disqualification. There is, indeed, an organization (C.R.E.W.) that is threatening suit if Trump is actually elected to federal office, but its legal argument does not hold water. It's based on the wrong law, lacks evidence, and the right law would require federal criminal prosecution not a civil suit by C.R.E.W.. Moreover, it would not be the first time that a suit by this organization against Trump did not hold up in court.

Amendment 14 § 3 only talks about engaging in insurrection. But Trump definitely did not do the necessary actions that constitute engaging in insurrection. He famously did not accompany the marchers to the Capitol himself.

18 USC §2383 covers incitement to insurrection, and includes a prohibition against holding federal office upon conviction of that. But, as I explained in an answer at https://law.stackexchange.com/a/60042/18361, the case that Donald J. Trump actually incited insurrection is weak, as there is no direct statement by him that did so. (I actually went through the transcript of the speech myself before writing that answer.) Telling people to "demand" that congresspeople "do the right thing" and "make your voices heard" is not, on its face, incitement to insurrection; because by such an interpretation any political activitist would be guilty of the same. One could argue that there's a context for Trump's statements, but it is a weak argument that would hinge on (a) a reasonable person's interpretation of Trump's statements, (b) the crowd's interpretation, and (c) inference of Trump's intent when he did not actually say the necessary words.

Since I wrote that answer, Mike Pence has revealed, in an 2022 autobiography (So Help Me God, not yet published at the time of writing this answer) and in a Wall Street Journal article, that Trump asked him to disrupt the process of counting the Electoral College votes, several times over the preceding month and indeed on the day of the count itself. This could potentially be a separate act of incitement. However, it is again, not a given that Mike Pence's account of what someone else said is sufficient as evidence. He has not (yet) given sworn testimony about this, let alone has such testimony been considered by a jury.

Furthermore, even if a jury were to give it credence, and even though it almost certainly qualifies as as incitement to something, another unsettled point is whether asking Mike Pence to do something necessarily qualifies as incitement to insurrection. It was (by Pence's same account) on the advice of a lawyer who had told Donald Trump one thing and other people another, that said lawyer had told Donald Trump was legal but untried. So there's question as to whether Donald Trump was knowingly inciting something that he had reason to believe was insurrection. Again, it's not a given that such a case would succeed, if there's an untested counterargument that Trump honestly believed that he was encouraging something that his counsel had told him was legal, or even a counterargument (should someone claim that it is at least a felonious act to do what was being proposed) that soliciting the commission of a felony does not meet the standard of incitement to insurrection.

(Then there's the fact that 18 USC §373 requires that it be a violent felony that is solicited, which not counting Electoral College votes clearly cannot be, and does not result in a prohibition of holding federal office.)

There are a lot of things that are simply not givens in such a case. Hence could be, not definitely will be.

As I wrote in that answer, there are far more clear cut cases against Eric Trump, Lara Trump, L. Lin Wood, and Rudy Guiliani; and should they ever try to hold office, a case against them has a far greater likelihood of success. One can pass the "incitement to imminent lawless action" test (see this article for background) far more easily with people who directly say things like "trial by combat"; there is evidence that they used words that encompassed violent action.

Likewise, C.R.E.W.'s successful 2022 suit against Couy Griffin, erstwhile county commissioner in New Mexico, rested (per the decision) on his performing several explicit acts that met the Amendment 14 § 3 (and 18 USC §2383) requirement of engaging in insurrection; unlike the untested and weak claim under just 18 USC §2383 (and not Amendment 14 § 3) that Donald J. Trump incited it. It was also a suit at state level under New Mexico state law.

So to reiterate, the relevant law is 18 USC §2383, which carries a prohibition on holding federal office, and allows for incitement. Amendment 14 § 3 is only relevant to those who engage in insurrection. And it isn't a given that incitement could be proven for Donald Trump, even though it could very likely be proven for other speakers, and even though engagement has been proven for others who climbed barricades.

Finally, 18 USC §2383 is a part of the U.S. federal criminal code, so the procedure would be criminal prosecution and conviction at the federal level. No impeachment would be involved, and it wouldn't be a state level suit by C.R.E.W. or a civil action.

And if you think that the aforegiven explanation, that you and C.R.E.W. are are looking at the wrong law and that there might not be the evidence to convict, is lengthy, just wait until you read this even longer argument that the President of the United States is not an "office under the United States" (written a month after my answer) and so even if it were to all hold up in court and result in a conviction for incitement to insurrection the outcome might not be disqualification to be elected President of the United States.

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