The 14th Amendment creates a “disability” for previous oath takers to hold public office in the federal government or any state government if they “shall have engaged in insurrection or rebellion…or given aid or comfort to the enemies” of the United States or of a state, respectively.


This is a statement creating a status (“disability”) for people who have “previously taken an oath…to support the Constitution” and thereafter violated that oath through “insurrection” or helping insurrectionists. This “disability” can be “removed” by a two-thirds vote of each house of Congress.

The nexus between ability to hold office and the “disability” to do so announced in the 14th Amendment is the violation of the oath of office. As applied to Donald Trump it is simply behaving in a manner inimical to his oath. It is not a crime committed by him nor is there a criminal penalty.

Significantly, the invocation of clause three of the 14th amendment does not require a prior impeachment and conviction.

In fact, the status described in the 14th amendment may not even require a majority vote in the Congress.

Through the congeries of events that have been widely reported Trump now has the disability and cannot serve in federal or state office. Clause three states how Congress can “remove such disability” but since it is a status by reason  of events and behavior it does not describe how the Congress can confer it.

Since it is certain that Trump will oppose being barred from office it would probably be best if Congress resolved that he is so barred by a majority vote in each House. This means sixty votes in the Senate under the current filibuster rules.

The 14th Amendment provides a better route to keeping Trump out of a return to the White House in 2024 than conviction in the Senate on  the House’s impeachment. It is true that conviction would also bar Trump from holding future office. But there are some problems with a Senate impeachment trial.

First, a Senate conviction requires the votes of sixty-seven Senators, something difficult to achieve. Second, the remedy is “removal from office,” a result that cannot be achieved since Trump is no longer in office.

In order to invoke the 14th Amendment’s bar to holding office, the better practice would be to have the Congress make the following findings of fact even if it may be unnecessary to do so:

–that Trump took the constitutional oath. (The President’s oath is prescribed in haec verba in the Constitution. The Vice President’s oath is statutory and is the same as that of every other federal employee.)

–that Trump did a number of things in pursuit of insurrection or in aid of insurrectionists (e.g. the call to the Georgia Secretary of State; the attempt to get the Department of Justice to influence Georgia to overthrow the election results; other calls to other state officials to do the same thing in their states; the January 6 exhortations; conspiring with the coup plotters, etc.)

–that as an officer of the United States Trump “engaged in insurrection” or gave  “aid or comfort” to those who did.


Should Trump seek the presidency in 2024 in the face of either impeachment conviction or the invocation of the 14th Amendment, the efficacy of either or both will be tested by him in the courts. Where that goes, nobody knows.