The effort to draft the resolution that would invoke a provision of the 14th Amendment began quietly in January and gained momentum over the weekend, as Democratic Sen. Tim Kaine of Virginia and Republican Sen. Susan Collins of Maine gauge whether the measure could attract bipartisan support.
The reception has been lukewarm so far from Democrats, who would prefer to see the former president convicted in the impeachment trial, and from Republicans, who fear political consequences in barring Trump from office.
But a group of Democratic lawmakers may still proceed with the censure resolution this week, hoping to build public support and political momentum for the alternative as the trial proceeds, two sources said.
Some Democratic lawyers warn the strategy could backfire if taken to court and provide Trump with a rallying cry to run again for president in 2024, while others see it as the last, best chance to hold him accountable for attempting to overturn the 2020 presidential results and disrupt Congress’ certification of his loss.
Ten Republican congressmen joined House Democrats last month to impeach Trump for a second time over “incitement of insurrection” on Jan. 6, when a violent mob of Trump supporters stormed the U.S. Capitol building and interrupted Congress’ certification procedure.
Trump’s impeachment trial begins on Tuesday in the Senate, where he is widely expected to be acquitted because conviction would require 17 Republican senators to join all Democrats.
As the likelihood of Trump’s acquittal has grown, so too have calls within the Democratic caucus for an alternative path to prevent Trump from holding office again.
Rep. Debbie Wasserman Schultz of Florida first raised the idea of a dual-track process that would reserve a second constitutional pathway. Kaine then began exploring the idea on the Senate side.
Their attention has focused on Section 3 of the 14th Amendment, a rarely cited Civil War-era amendment which allows Congress to bar individuals from holding office if they have “engaged in insurrection.” A resolution to censure Trump would require a simple majority vote to pass in the House and Senate.
Constitutional scholars including Michael Gerhardt, Lawrence Tribe, Bruce Ackerman and Erwin Chemerinsky have advised lawmakers on the plan.
Ackerman, a professor of constitutional law and political science at Yale University, told McClatchy that President Joe Biden would not be required to sign the resolution — but that nothing would stop him from voluntarily endorsing the effort, “vindicating the Constitution’s continuing importance.”
“The decisive precedent was established by Congress in 1869 when it implemented Section 3 through a Joint Resolution to disqualify all Confederate officials from service,” Ackerman said.
The three conservative justices appointed to the Supreme Court by Trump would likely read this statute as it was originally intended and support that the Congress is on sound legal footing, Ackerman said.
Some of the scholars, including Ackerman, have helped draft the resolution, engaging in late-night calls with congressional staff from the offices of Democratic Sens. Sheldon Whitehouse of Rhode Island, Dick Durbin of Illinois and Kaine, as well as Reps. Steve Cohen of Tennessee and Wasserman Schultz, among others.
“I’ve been working on it independently for a long time — we’ve done research, we’ve talked to some scholars on how it could be used,” Cohen said.
Cohen said he was not aware whether the proposal has the support of either of the top congressional Democrats, House Speaker Nancy Pelosi or Senate Majority Chuck Schumer, a prerequisite for the process to move forward.
Durbin, the second highest-ranking Democrat in the Senate and chair of the Judiciary Committee, suggested in late January that a resolution of some kind could follow an acquittal.
“I hope enough Republicans join us to impeach this president,” Durbin said on Jan. 27. “If they don’t, perhaps we’ll consider some alternatives.”
But some Democratic lawyers have raised concerns that the strategy could come back to haunt the party.
The Constitution does not allow Congress to punish an individual over a crime without due process or a trial — a process referred to in the founding document as a “bill of attainder.” Democratic lawyers have warned members of Congress that any move to bar Trump from holding office without conviction at an impeachment trial could provide him with a strong constitutional argument in any future court challenge.
“I know there was some concern about it being a bill of attainder, but I’m not concerned about that,” said Cohen, a member of the House Judiciary Committee, “because what he did was the most horrific thing that a president of the United States has ever done to this country.”
The debate among members of Congress is now whether to push for the resolution early this week — as the impeachment trial is first starting — or towards the end, once evidence against the former president has been presented and acquittal is still assured.
Speaking with reporters on Capitol Hill last week, Kaine said his censure proposal was still on the table despite the resistance he and Collins have faced from their colleagues in both parties.
“We’re not going to file it unless we see a path to success. So we’ll get into the trial,” Kaine said. “The idea is out on the table. They understand it. They understand what it will do. Right now there’s not enough support on either side.”
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