With Impeachment Failing, Dems Considering Occam’s Razor; Can Bar Trump From Office With a Simple Majority Vote, Say Experts
Democrates Considering Occam's Razor
WASHINGTON, D.C. (January 28, 2021) - Because barring Donald Trump from federal office by convicting him by a two-thirds vote just became even less likely, with almost all Republican senators voting that the impeachment trial is unconstitutional because Trump can no longer be removed, senators seeking to keep him from running for office again are scrambling to find some alternative.
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By using the basic principle underlying Occam's razor - that the simplest solution is often the best - there is a simpler way of achieving the same result which apparently requires only a majority vote in each house of Congress, according to public interest law professor John Banzhaf, and to a number of other legal experts.
Section 3 of the 14th Amendment provides: "No person . . . having previously taken an oath . . to support the Constitution . . shall . . hold any office . . under the United States . . who . . shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
So, in the simplest scenario, Congress, by only majority votes, could pass a sense of Congress resolution or a joint resolution that Trump, and perhaps others also covered by the section, had "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof," and leave it to the courts or state governments to ensure its enforcement against Trump if he ever seeks to hold office again.
This should not be difficult because a majority of the House, including some Republicans, just passed a resolution of impeachment charging him with "incitement of insurrection." It declares that "Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States."
Barring Trump From Holding The Office Again
In an slightly different scenario to bar him from again holding office, since the 14th Amendment authorizes Congress to enforce Section 3 with legislation, it could pass a law declaring that any person covered by the section who incited, directed, or aided in the January 6th "insurrection" [defined as "a violent uprising against an authority or government whether or not successful"] would be barred from ever holding office.
History tells us that the section was in fact enforced against some members of the Confederacy, but as the Washington Post has reported:
"Congress passed the Amnesty Act of 1872, which removed a prohibition against holding office by all but the most senior Confederate leaders. In 1898, wider amnesty was granted as a 'gesture of national unity' during the Spanish-American War, Magliocca wrote. (In the 1970s, Congress posthumously granted the same benefits to Confederate Gen. Robert E. Lee and Jefferson Davis, president of the Confederacy)."
This history certainly suggests that Congress can see to the enforcement of the section as to various individuals, and can also grant amnesty to named individuals, says Banzhaf.
Relying On The Insurrection Portion Of The Constitution
Thus relying upon the insurrection portion of the Constitution, rather than - or in addition to - the impeachment section, might be easier and more likely to be successful than convicting him with a two-thirds vote of the senators present, Banzhaf predicts.
Another - but much less likely or realistic - way of preventing Trump from running again would be to persuade 25 Republican senators, who want Trump barred from running but are reluctant to publicly vote to convict him, to simply walk out of the chamber before the crucial vote is taken.
This would reduce the number of senators "present" to 75, so that the 50 Democratic senators voting against Trump would constitute the two-thirds necessary for a conviction.
Republican senators could justify refusing to participate by claiming - as many already have - that the proceeding is unconstitutional, suggests Banzhaf.