Can Trump be barred from holding federal office again?

Nancy Pelosi, seated with pen in hand, signs a document.

Jan. 14, 2021 6:57 AM PT

WASHINGTON — Now that President Trump has been impeached by the House of Representatives a second time, keeping him from holding office again could be Congress’ next step.

Every House Democrat and 10 Republicans voted Wednesday to impeach Trump for his role in inciting last week’s riot at the U.S. Capitol.

“The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. ... There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution,” Rep. Liz Cheney (R-Wyo.), the House’s No. 3 House GOP leader, wrote in a statement announcing she would vote for impeachment.

On the Senate side, Majority Leader Mitch McConnell (R-Ky.) has said privately he’s through with Trump.

But impeachment alone won’t prevent Trump from seeking office in the future. Here are some questions and answers about how Congress might bar Trump from ever seeking federal office again.

What exactly does impeachment do?

Impeachment in the House sets up a trial in the Senate, where a two-thirds majority is required to remove the president from office. Trump has been at this point before, of course. After the House impeached him in late 2019 for his pressure campaign on Ukraine, the Senate voted to acquit. Only one Republican, Mitt Romney of Utah, broke with the GOP.

This time, however, could prove different. McConnell himself said Wednesday he was undecided. Other Republicans are angry, and Trump would presumably be out of office before any vote is taken on whether to convict him. President-elect Joe Biden is sworn in Jan. 20. With the Senate split 50-50, Democrats and the two independents who caucus with them would need 17 Republicans to join them to convict Trump.

Is Trump automatically barred from office if he’s convicted?

No, if past is precedent. If the Senate were to convict, lawmakers would take a separate vote on whether to disqualify him from holding future office.

No president has ever been convicted in the Senate and removed from office. But in the case of federal judges who were impeached and removed from office, the Senate has taken a second vote after conviction to determine whether to bar the person from ever holding federal office again.

The bar is lower on that second vote, with only a majority of senators needed to succeed. Then again, because it’s never happened before in the case of a president, a court challenge could follow. Frank O. Bowman III, a University of Missouri law professor and author of “A History of Impeachment for the Age of Trump,” said it was his view that the lower number of votes made sense, but it’s not crazy to think that it might be challenged if things got to that point.

Another legal issue: It appears that Trump’s Senate trial would not start before Jan. 19, a day before he leaves office. Scholars disagree about whether a former president can face an impeachment trial in the Senate.

Is that the only way Trump can be barred from office?

Maybe not. In an opinion piece published in the Washington Post on Monday, Yale Law School professor Bruce Ackerman and Indiana University law professor Gerard Magliocca argued that members of Congress had another, perhaps easier, path to barring Trump from office.

They pointed to Section 3 of the 14th Amendment, aimed at preventing people from holding federal office if they are deemed to have “engaged in insurrection or rebellion against” the Constitution.

The professors write that if a majority vote of both houses agree that Trump has engaged in an act of “insurrection or rebellion,” then he would be barred from running for the White House again. Only a two-thirds vote of each house of Congress in the future could undo that result.

The sole article of impeachment adopted Wednesday cited that provision of the Constitution and said Trump should be disqualified from holding future office.

What’s Section 3 doing in the 14th Amendment?

The 14th Amendment was one of three amendments adopted after the Civil War to end slavery and afford equal rights to Black people. The point of Section 3, according to Ackerman and Magliocca, was to keep Confederates — those who had engaged in “insurrection or rebellion” — from holding public office in the postwar period. In 1872, Congress passed the Amnesty Act to allow those men to serve again. But Section 3 remains. It was last used a century ago to keep a socialist from Wisconsin who opposed U.S. entry into World War I from taking his seat in Congress.