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The 14th Amendment Is Not an Alternative to Impeachment

This is not the time to flex the Constitution, despite the need for urgency.
January 13, 2021
The 14th Amendment Is Not an Alternative to Impeachment
Cracked glass in the doors to the House of Representatives at the U.S. Capitol on January 11, 2021, days after a mob stormed the building. (Stefani Reynolds / Getty)

As Congress debates whether and how to remove Donald Trump from office, politicians and commentators have been quick to explore the Twenty-fifth Amendment’s procedure for removing a president due to an inability “to discharge the powers and duties of his office.” Late on Tuesday night, the House of Representatives approved a nonbinding resolution formally asking Vice President Mike Pence to invoke the Twenty-fifth; he has transmitted a letter saying that he will not do so. (Over the weekend, I made the case against using the Twenty-fifth.) The House is expected to turn immediately on Wednesday to pursuing a historic second impeachment against President Trump.

Meanwhile, though, a third option for removing Trump from office has been floated: to disqualify him via a little-known provision of the Fourteenth Amendment meant to restrict former Confederates from government service after the Civil War.

Advanced by historian Eric Foner and law professors Bruce Ackerman and Gerard Magliocca, and trumpeted by Katrina vanden Heuvel of the Nation (among others), it’s a worse idea than the Twenty-fifth Amendment plan. It shares with the Twenty-fifth Amendment approach the problem of novelty but has an even more tenuous connection to Trump’s actions.

Impeachment, however, is solid, certain, and tested by long experience. It is not found in an obscure corner of the Constitution until recently familiar only to experts. Impeachment has been used by Congress throughout the nation’s history in response to the malfeasance of federal officials, including but not limited to presidents. That long history makes impeachment the correct tool to remove Trump.

Twenty individuals have been impeached by the House of Representatives, including 1 senator, 1 cabinet secretary, 1 Supreme Court justice, 3 presidents, and 14 federal judges. In 8 cases, the Senate voted to convict and remove from office. Another 8 cases produced an acquittal, and 3 times, the accused resigned and ended the process.

The first impeachment was perhaps the strangest. In 1797, Tennessee Senator William Blount was brought up on charges for conspiring with the British to seize Spanish lands along the Gulf Coast. Blount had represented North Carolina at the Constitutional Convention—which is to say, he was a signer of the document later used to prosecute him. The House impeached him on July 7, 1797, but the Senate expelled him the next day. The House subsequently drew up articles of impeachment for the former senator, but the Senate declined to take them up, saying it lacked jurisdiction. Ever since, members of Congress have been removed by expulsion rather than impeachment.

In the most recent pre-Trump impeachment cases, Judge Samuel Kent was impeached for sexual abuse and obstruction of justice in 2009, and Judge G. Thomas Porteous Jr. was impeached for taking bribes and for perjury in 2010. Kent resigned before the Senate could act; Porteous was convicted and removed from the bench. Both cases were heard by many current members of Congress; Adam Schiff, Hank Johnson, and Zoe Lofgren were among the House managers—experience that prepared them for that role in Trump’s 2019 impeachment.

Rep. Alcee Hastings has a special expertise in impeachment proceedings, having been on both sides of them. He was a federal district court judge when, in 1988, he was impeached for bribery and perjury. He was convicted by the Senate and removed from office in 1989—but he was then elected as a Democrat to Congress by the state of Florida in 1992. He is now the longest-serving member of the state’s congressional delegation. He voted for all three impeachments of judges that came up after his own impeachment, as well as the impeachment of President Trump, but opposed the impeachment of President Clinton.

All told, Congress has significant institutional experience, both historical and in present times, to carry out an impeachment that will earn widespread support. History buttresses legitimacy, which is crucial because removing a president from office has never been done before.

This is not the time to flex the Constitution, despite the need for urgency. Remember that creative approaches to the law played no small part in sparking the current crisis. The mob that descended on Washington assembled because Trump led them to believe that Pence, in his role as president of the Senate, could somehow decertify the Electoral College results and deliver a Trump victory. “If Mike Pence does the right thing,” Trump told the crowd on January 6, “we win the election.”

Trump’s theory not only contradicted the role outlined for the vice president in the Electoral Count Act of 1887, but also would have transformed the vice presidency into a formidable office with the final say over who became president. The first vice president, John Adams, who considered it “the most insignificant Office that ever the Invention of Man contrived or his Imagination conceived,” would have been shocked. He had great power and no one told him? Fortunately, as the New York Times has reported, Pence’s staff arranged to have a respected federal judge tweet out his understanding of the vice president’s limited role, an analysis that Pence immediately cited in his letter rejecting Trump’s suggestion that he intervene in the Electoral College count.

As I wrote over the weekend, the Twenty-fifth Amendment is not well suited for the present circumstances. The text of the amendment speaks only of a situation in which “the President is unable to discharge the powers and duties of his office.” The amendment’s authors clearly had in mind a medical disability.

The Fourteenth Amendment route is even more of a stretch. Here is the relevant text, from section 3 of the amendment:

No Person shall . . . hold any office, civil or military, under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . 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.

The text’s generic language makes it seem like it applies to more than just ex-Confederates. Yet this passage was clearly meant to address a specific problem following the Civil War: how to keep secessionists away from power and prevent the old antebellum problems from resurfacing. After Reconstruction, the provision has been used only once: to keep socialist Victor Berger out of Congress during World War I. But even then, a successful court challenge allowed him to serve again.

To invoke either of the amendments now, for the first time, for a non-medical reason and against someone who wasn’t alive during the Civil War, risks giving the appearance that the goal, however achieved, was more important than the process.

Removing a president from office is novel enough. Impeachment has a history that gives it extra heft. Congress should embrace its experience with impeachment and devote its energy to that path alone.

David Head

David Head is an associate lecturer of history at the University of Central Florida and Distinguished Faculty Fellow in History at Kentucky Wesleyan College. He is the author of A Crisis of Peace: George Washington, the Newburgh Conspiracy, and the Fate of the American Revolution (Pegasus, 2019) and Privateers of the Americas: Spanish American Privateering from the United States in the Early Republic (Georgia, 2015). Twitter: @davidheadphd.