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The 14th Amendment is the cornerstone of Trump’s impeachment. How it works, why it matters



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Why has the 14th amendment entered the discussion?

Drew Angerer / Getty Images

Fail to remove President Donald Trump from office through the 25th amendment, the House of Representatives Trump deposed for the second time on Wednesday evening after a heated debate. In a vote of 232 to 197, including one historic 10 Republicans voting for impeachment the president of their party – the House passed an article on impeachment (PDF) accusing Trump of ‘inciting insurrection’ for his role in the January 6: Attack on the Capitol.

The basis of the impeachment article is the 14th Amendment to the U.S. Constitution, which the House used to justify its Trump case again. Below we explain exactly why.

Because it’s so close to the end of Trump’s term (President-elect Joe Biden will be inaugurated next week), Democrats and some Republicans hope to use the 14th Amendment as a reason for the Senate Trump for causing the deadly riot, and further prevent him from holding public office in the future. Trump has hinted that he would run for president again in 2024.

This is how the 14th amendment comes into the conversation.

read more: Could Trump still try to forgive himself despite impeachment? What we know

What is the 14th Amendment and how does the Trump impeachment article use it?

The 14th Amendment – added to the Constitution in 1866 – has five sections in all. For example, Section 1 says that anyone born or naturalized in the US is a citizen of the state in which they reside.

But it is section 3 of the 14th amendment in particular that has been receiving attention recently. In simple terms, Section 3 says that if someone is involved in an “uprising or rebellion” against the US, he cannot hold office.

Read more: FBI and DOJ update Capitol riot arrests over future attacks

The full section reads:

No one may be a senator or representative in Congress, or an elector of president and vice president, or hold office, civil or military, under the United States or any state that, having previously taken an oath, as a member Congress, whether as an officer of the United States, or as a member of a state legislature, or as an executive or judicial officer of a state, to support the United States Constitution, will have been guilty of insurrection or rebellion against the same, or help or comfort given to its enemies. But Congress, with a two-thirds vote from each House, can lift such a handicap.

The House uses the 14th Amendment as the basis for its case. Further, Section 3 of the 14th Amendment to the Constitution prohibits any person who ‘has been involved in insurrection or rebellion against’ the United States from ‘custody[ing] any office. . . under the United States, ” says the impeachment article (PDF).

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An image of the January 6 attack on the Capitol.

Spencer Platt / Getty Images

What it would take to implement the 14th amendment

The 14th Amendment has never been used to impeach a sitting president, so less in the conversation about removing Trump from office and more focused on preventing him from running for political office in the future. The amendment also requires significantly less legwork than the 25th Amendment – a simple majority in both houses, but no support from the Vice President.

Since the 14th amendment does not contain any language related to removal, impeachment – and a two-thirds majority of senators voting to convict in a trial – is how Trump would be removed from office. But with only a week in office, it’s unclear whether a conviction would have much material effect without the additional disqualification from office.

Brian Kalt, a law professor at Michigan State University, told Reuters that the language of the fifth part of the amendment suggests that taking action requires a mix of law and lawsuits.

Trump could potentially dispute semantics, and those are his comments protected by the First Amendment, but this argument may not hold up much.

In short, Congress has the power to expel members, but it should come through legislation, in this case, the impeachment process in the Senate, and another vote to expel Trump from his future office. The two-thirds majority needed to condemn wouldn’t move forward without Republican backing.

Has the 14th Amendment ever been used before?

Yes and no. In its infancy, the 14th Amendment was used to oust various legislatures for supporting the Confederacy at the start of the Civil War. Congress also appealed for the 14th Amendment in 1919 to prevent elected official Victor Berger from joining the House after opposing the US intervention in World War I.

While the amendment has not been used to remove a sitting president, it has been a focal point in multiple Supreme Court cases throughout history. The 14th Amendment has been cited in racial injustice cases such as Plessy v. Ferguson in 1896 and Brown v. Board of Education in 1954, as well as Bush v. Gore in 2000, in which former Florida president George W. Equal protection clause of amendment violated. More recently, the 14th Amendment was cited in Obergefell v. Hodges in 2015 by Judge Anthony Kennedy to advocate for same-sex marriage.


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