The Sweep: Insurrection Mailbag Edition

This is a campaign newsletter. But inherent in any discussion of campaigns is self-government. What happened last week was an assault on the very idea of free and fair elections. If one side can simply say—without evidence and despite losing in every court at both the state and federal level—that they do not accept the outcome, then our Constitution doesn’t mean much. 

Our Founding Fathers listed 27 grievances against the mentally unstable tyrant King George in their Declaration of Independence. They wrote that the “history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” Included in their list of complaints—all of which are worth a walk down our collective national memory lane here—is that the king “excited domestic insurrections amongst us.” And they note that the king, “whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

My point in all this is to remind us that our Founding Fathers wrote our Constitution 11 years later with that 1776 document very much in mind. Their aim—as Madison and Hamilton wrote in Federalist 47 and 69 respectively—was to create an executive wholly unlike the king and less likely to result in that “dangerous tendency to such an accumulation.” That is why the impeachment power exists: to provide the legislature a check against a would-be tyrant. 

And so I’d like to answer some of your more legal, constitutional questions that touch on these issues.

1. Can Congress bar the president from running for office again in 2024 with a simple majority under their impeachment power?

Probably not. Article I of the Constitution says:

… no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States ...

Conviction requires two thirds of the current 99 members of the Senate. Without the new Georgia senators—who are not expected to be seated until after inauguration day—a conviction would require the current 48 Democrats and 18 Republicans. As the “judgment” upon conviction, the Senate can remove the person from office “and” disqualify him from holding any federal office again. 

There have been some news stories that mention two judges—one from 1862 and one from 1913—that were barred from holding future office by a simple majority vote. But that was after two thirds had already voted to convict them on articles of impeachment. Arguably at that point, there didn’t need to be a separate vote at all—the Senate can bundle together conviction, removal, and disqualification all into one. 

Regardless, it is not possible for the Senate to use its impeachment powers to bar Trump from running again in 2024 without first getting two thirds of the senators to vote to convict.  

2. Could the President be barred from running for office again in 2024 using Section 3 of the 14th Amendment?

This argument is gaining some steam, so let’s dissect it. The 14th Amendment was ratified in 1868 following the Civil War. It is fundamental to ensuring the equal protection of the laws to all Americans and is cited every single day in courts across the country. But Section 3 has gotten a lot of attention for the last century or so. It says: 

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.

In other words, if anyone—including a state officer—has ever taken an oath to defend the U.S. Constitution and then violates that oath by “engag[ing] in insurrection or rebellion” that person cannot hold any state or federal office again without a specific congressional intervention. 

But what does “insurrection or rebellion” mean outside of the context of the civil war? If Trump ran again in 2024, who would have standing to bring a lawsuit in court to argue that he was automatically barred by this provision? 

In 1870, Congress made it a crime to accept a position in violation of Section 3, punishable by up to one year in jail and a $1,000 fine. But that would mean that a prosecutor could need to indict Trump only after he had been sworn in as president. And presidents can’t be convicted of a crime until they leave office. So that feels a little toothless as it applies to the presidency. 

There is one other footnote to this conversation, though. In 1898, Congress passed a law that allowed it to disqualify someone from holding office through legislation. In other words, a majority of the House and Senate with the signature of President Biden could pass a law that said “Donald Trump shall be disqualified from holding federal or state office for violating Section 3 of the 14th Amendment related to his actions on January 6, 2021.”

3. Can the president pardon himself?

According to the Department of Justice, no. On August 5, 1974—four days before President Nixon resigned in the face of almost certain impeachment in the House—the Office of Legal Counsel in the Department of Justice issued a three-page opinion stating that “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” 

But they also provided some helpful advice to a president who might be in search of a pardon: “If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.”

This means that there would be no constitutional issue if, on the morning of Inauguration Day, Trump signed over temporary power to Vice President Pence under the 25th Amendment, Pence issued a pardon to Trump for all crimes—charged and uncharged—before January 20, 2021, and then Pence handed back power to Trump until Biden takes the oath of office at 12:01 p.m. that day.

4. Can Congress at least take away the president’s pension? 

Under the Former President’s Act, a former president is entitled to receive a yearly salary equal to that of a Cabinet secretary, staff, and office space. “Former president,” however, is defined as someone who 1) ever served as the president of the United States and 2) left the presidency for any reason “other than by removal pursuant to section 4 of article II of the Constitution of the United States of America.” So if the Senate convicts the president and removes him from office, then all of that goes away. 

Note, however, that if the Senate convicted Trump after he left office, then he would still qualify as a former president because he would have left the presidency upon Joe Biden being sworn in—not because he was removed.

Under 18 U.S. Code §3056, former presidents—not defined in this section—receive lifetime Secret Service protection as well. 

5. What happens if the House passes articles of impeachment this week, but the Senate doesn’t conclude its trial until after the president has left office?

Or to phrase this another way: Can a former president be impeached? 

There’s no definitive answer to this question either in the Constitution’s text or our history. Let’s start with the text:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

It doesn’t say anything about former office holders. There is a legal canon of interpretation referred to as expressio unius est exclusio alterius: To express or include one thing implies the exclusion of another. In this case, by including the list of specific offices—not persons who hold or have previously held the office—the framers intended to exclude former officeholders.

But does this mean that presidents can go on a high crimes and misdemeanor spree in the few days before they leave office, free of fear because there would never be enough time for impeachment? 

Maybe. 

First, a president can be arrested the moment after his or her successor takes the oath of office. So any last minute crime spree could be dealt with by prosecutors. In fact the Constitution makes specifically clear that even a president who is impeached and removed from office can then be tried in criminal court for the same conduct. 

But what if the impeachable offense isn’t criminal? What if it’s just that a president tried to ignore our Constitution and our courts and declare himself the winner of an election that he lost?  Or that a president delayed in approving federal law enforcement from going to the aid of Congress when it was under attack by an armed mob? Those aren’t crimes, after all.

As I mentioned in my little pardon-for-conviction proposal on the website this weekend: 

In 1876, the same year as one of the most hotly-contested presidential elections in history, President Ulysses S. Grant’s secretary of war, William Belknap, resigned just before the House could vote unanimously to impeach him for profiting from a not-so-clever kickback scheme to fund the lavish parties he was throwing at his home in D.C. The Senate tried him—with Gen. George Custer as a star witness—but only 35 senators voted to convict, which was just shy of the 40 needed to meet the two-thirds threshold required by the Constitution. The senators who voted to acquit didn’t dispute Secretary Belknap’s guilt; they did not believe they could impeach someone who had already left office.

To some extent, this will be like the question of what is an impeachable offense. And the answer to that is whatever the two houses of Congress say it is. Is a former officer impeachable? 

Perhaps the Senate will tell us after January 20.