Should Donald Trump be Impeached, Censured, or Banned from Office: Is There a Good Option?
By
Robert J. Fischer
Introduction
I had considered taking a pass on this controversial question. However, given the forty-five Republican Senators who voted to NOT proceed with Impeachment due to Constitutional issues, I decided to do some research. Depending on which media outlet or social media being read, the opinions are varied. There are those who believe that even though Donald Trump is no longer President, he can and should be held accountable for actions that are attributed to him in reference to the January 6, 2021, assault on the Capitol. On the other hand, there are many (including the forty-five Republican Senators) who believe that since Donald Trump is no longer President, there is no need for Impeachment.
Impeachment or Banned from Holding Office?
Given the bipartisan divide, as well as the continuing popularity of Donald Trump, Impeachment is likely to be a public “showcasing” of his alleged treasonous actions that will likely NOT result in a conviction. Is this the best direction for a legislature that has several major national crises which they must tackle?
There are other options which have been mentioned in the media. Perhaps the most promising is invoking Section 3 of the 14th Amendment. Section 3 bars any federal or state office holder who has “engaged in insurrection or rebellion” from holding public office. The language is clear, and on the surface appears to present an easy way to deal with the problem. In addition, this approach might garner Republican support. However, it is unlikely that most Trump supporters will support the idea.
This Section was part of the post-Civil War efforts to keep Confederates from holding federal and state offices. Congress establishes that the penalty for insurrection, rebellion, or giving aid or comfort to the enemy is disqualification from holding public office. The Amendment gives Congress the power to enforce the provisions of this Amendment.
In an effort to clarify who has the right to determine culpability, Congress passed the Klu Klux Klan Act of 1870, which established the provisions for enforcing Section 3. The Act charged federal prosecutors with enforcing the provisions of the Section by bringing charges to remove the offender from office. The Act also made it a criminal offense for someone to knowingly seek office if in violation of the language in Section 3.
Using Section 3 and the Klu Klux Klan Act could make it possible for the Justice Department to disqualify Donald Trump from running for office. However, the charge against Donald Trump would allow him to present evidence in his behalf in a federal trial.
There are arguments that the 1860s and 70s legislation had a specific purpose, and that purpose does not apply to Donald Trump. Therefore, the courts would need to settle the dispute. This would require a review of “case law” which weighs in favor of granting prosecution under Section 3 to the judiciary, not Congress.
As suggested by Daniel Hemel in his Washington Post piece of January 21, a safer approach would be for Congress to pass an updated Klu Klux Klan Act. This act would specifically authorize the Department of Justice to bring legal action against a person who pursues public office in violation of Section 3.
The advantage of Hemel’s approach is that the law does not specifically mention Donald Trump, but does subject him to a criminal trial should he decide to seek office at any point following passage of the legislation.
Censure
This does NOT preclude censure of Donald Trump. A censure is a public reprimand, and would likely include most if not all of the accusations made toward President Trump during the final months of his presidency.
The criticism of this approach is that a censure is not binding. It does not have any direct legal consequences for the censured party, other than public denouncement. A censure is an alternative to taking more serious actions.
The censure is designed to bring about reform of the accused and prevent them from repeating the conduct that led to the censure. Possible grounds for censure of presidents may include some of the following:
- Refusal to accept appeals for decisions
- Ignoring proper protocol
- Disobeying laws and rules
- Ignoring the direction of the Legislature or Courts
- Denying constituents their proper constitutional rights
- Promoting insurrection
Andrew Jackson is the only President to have been successfully censured. He was censured for his failure to turn over documents, as ordered by Congress, supporting his claims that the Bank of the United States was influenced by foreign governments. There was also an unsuccessful attempt to censure James Polk, who some believed had started the Mexican/American War illegally. In the past four years, there have been unsuccessful efforts to censure President Donald Trump over the Ukraine scandal.
Summary/Conclusions
There are actually four options in considering what to do with Donald Trump’s actions associated with the January 6, 2021 attack on the Capitol. The first is to do nothing. That would not fare well with a large majority of Americans. The second is Impeachment. This option would not fare well with Trump followers, but would allow the accusations to have a thorough hearing. However, it is unlikely that there would be enough votes to find Donald Trump guilty. A third option is Censure. However, this option is weak and would leave no assurance that Donald Trump would not be able to run for office in the future. The fourth option is Section 3 of the 14th Amendment. This is the most time consuming option, which might also face legal challenges. However, it is the option which would allow for an airing of the charges against Donald Trump and his ability to defend himself. A verdict rendered by a judicial court would then be established. Should Donald Trump be found guilty, he would be banned from office under the Klu Klux Klan Act or a new law, should Congress decided to update the 1870 law.
Thoughts from the Middle by Robert J. Fischer 