Trump is barred by the 14th Amendment from serving as President—why aren’t Democrats raising this?!

Time to take the FIGHT to Trump!!

From a legal point of view, it’s clear that Donald Trump should be barred from holding federal office by way of Section 3 of the 14^th Amendment of the US Constitution. Trump had taken an “oath to support the Constitution of the United States” when he was sworn is as President and then he “engaged in insurrection” on Jan. 6 with the attack on our Capitol by his supporters. That means come January 20, if Trump is sworn in, he will be an illegitimate President.

The only question is: Will Democratic leaders take the fight to Trump on this issue or roll over? And it’s true that Democrats don’t control Congress but that doesn’t mean they should “obey in advance” and not raise this legitimate issue in the media, in Congress, etc. This is about defending our Constitution and if Democrats don’t take the fight to Trump now, history tells us that aspiring autocrats like Trump will be even more embolden in the future to break the law and violate the Constitution.

As a brief reminder, the Colorado Supreme Court ruled in December 2023 that Trump was disqualified from ever holding office again by way of Section 3 of the 14^th Amendment. The court first determined that the Jan. 6 attack was an “insurrection” as the framers of the 14^th Amendment intended.

The court then concluded Trump had “engaged” in that “insurrection” given Trump’s countless overt acts after the November 2020 election to build support for the Jan 6 attack. As the court wrote, “Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country.” Thus, the court concluded that “President Trump is disqualified from holding the office of President under Section Three.”

It’s true the U.S. Supreme Court later reinstated Trump to the ballot in Colorado but they did not question the conclusion that Trump had “engaged in an insurrection.” Rather the ruling’s focus was the enforcement of this section of the US Constitution. The Court found that “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.” Rather, “enforcing Section 3 against federal officeholders and candidates rests with Congress.”

The non-partisan Congressional Research Service recently wrote about this Supreme Court decision, “It is not clear if the Court’s opinion requires implementing legislation for Congress to directly enforce Section 3.” That means arguably Congress could use other means to bar a person from federal office for violating Section 3 of the 14^th Amendment—such as both chambers voting in favor a resolution.

But here is a fact overlooked by many. Both a majority of the House and Senate have already voted that Trump had incited an insurrection and is barred from holding office by way of Section 3 of the 14^th Amendment. On January 13, 2021, the House considered a resolution to impeach Trump titled, “Incitement of an Insurrection” which included a specific reference to this disqualifying provision: “Section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office…under the United States.”

The resolution then detailed the acts Trump took “inciting violence against the Government of the United States.” The proposed resolution concluded, “Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

That article of impeachment was approved 232 to 197—with ten Republicans joining. And it was that very article of impeachment that included the reference to barring Trump by way of Section 3 of the 14^th Amendment that 57 Senators in the Senate voted in favor after Trump’s impeachment trial—including seven Republicans.

If these two votes are sufficient to trigger the Section 3 disqualification clause, then the only way it can be lifted is by “a vote of two-thirds of each House.”

Given this history, Democrats in Congress should be raising this issue. Will they succeed in barring Trump? Very unlikely. But there are bigger issues here at play. For starters, Democrats must make it clear they will be taking a very public fight to Trump to preserve our Constitution at every turn. If Democrats are going to “obey in advance” on the 14^th Amendment, why wouldn’t Trump in future violate the 22^nd Amendment and seek a third term? Or violate the First Amendment by prosecuting media figures who criticize him?!

As Timothy Snyder warns in his book, “On Tyranny,” about not obeying in advance, “Most of the power of authoritarianism is freely given.” Snyder noted that, “After the German elections of 1932, which brought Nazis into government…the next crucial step was anticipatory obedience.” History is screaming at us—as Snyder details—that, “Anticipatory obedience is a political tragedy.”

Add to that, polls in 2023 and 2024 found that nearly 80% of Democrats believed that Trump was disqualified from holding office again for engaging in an insurrection. If Democratic leaders ignore what this huge chunk of the base passionately believes in and simply rolls over, it will dampen the enthusiasm of the rank-and-file Democrats. But vocally taking the fight to Trump—even if they lose—will inspire the Democratic base since they are clamoring for fighters to lead the party.

If Democratic leaders have a strategic reason for not wanting to raise this issue, then tell us why. But surrendering to Trump is not an option. After all, Democratic officials warned us that Trump was “a threat to our democracy and fundamental freedoms,” that he “threatens the very foundations of our republic” and that he is literally a “fascist.” They were right. Now it’s time for these same Democrats to boldly act like Trump is the very type of threat they warned us he was.

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