US Congress

As protecting our democracy becomes an urgent national focus during the final two weeks of Donald Trump’s term, a growing number of officials and citizens have begun debating whether to remove Trump from power, either through the 25th Amendment or impeachment. Regardless of what happens in these coming days, it is imperative that Congress ensure that this president never takes power again. The clearest and most constitutionally appropriate way to do this is for the House to impeach President Trump, and then for the Senate to vote to disqualify him from holding any future federal public office.The power of Congress to disqualify an impeached president from holding office has received less attention through history than the power of Congress to remove a president from office. The Constitution is clear that after a House majority vote to impeach and a two-thirds Senate vote to convict, the president is removed from office.Yet Article I Section VII clarifies that removal is not the only punishment impeachment can bring. It reads: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” This clause shows definitively that the Senate can inflict a penalty that would prevent Trump from holding office again. Under established Senate practice, that vote to disqualify would require only a simple majority vote in the Senate, less than the two-thirds vote required for conviction.Two historical precedents have established this procedure. In 1862, a federal judge named West Hughes Humphreys was impeached by the House. When it came time for the Senate to pronounce judgement, the body determined that the decisions of whether to remove and whether to disqualify were separable. The Senate first voted by two-thirds majority to convict and remove Humphreys, and then took a second vote, under a simple majority requirement, to disqualify him from future federal office. In an eerie foreshadowing of what we just witnessed with Trump, one impeachment article accused Humphreys of acting “in disregard of his duties as a citizen…Humphreys endeavor[ed] by public speech to incite revolt and rebellion’ against the United States.”A second disqualification was voted upon in 1913 in a case involving federal judge Robert Archbald. Archbald was convicted by a two-thirds majority in the Senate, and then, in a separate vote, he was disqualified from holding future office on a simple majority vote of 39 to 35. In a later 1936 trial involving Judge Ritter, the Senate cited the Humphreys precedent for the simple majority requirement for disqualification, though ultimately the Senate did not impose the penalty of disqualification.These precedents show the Senate is permitted to disqualify President Trump from future officeholding on a majority vote if he is impeached and convicted. Disqualification is a severe punishment for a “high crime and misdemeanor,” and although it has been used in impeachments of federal judges, it has never been imposed on a US president. Now, however, we have crystal clear evidence that the president has engaged in conduct that requires this extreme punishment.On Wednesday, the president of the United States incited a mob to descend on Congress in order to stymie the vote to certify Joe Biden’s election as president of the United States. It was clearly a crime. The president, like all Americans, has a right to free speech. But the First Amendment does not protect the right to incite a violent riot.What is more crucial for the punishment of disqualification is that this was a “high crime,” meaning a gross abuse of power. Nothing is more important to a democracy than the peaceful transition of power between administrations. Without it, the country risks a collapse into the kind of violence we saw Wednesday as a way of life, not a momentary disruption.This week, Trump welcomed that violence, saying he “loved” those participating in the insurrection. He claimed that the nation had never seen an election “stolen” like this one. He added, “I know how you feel.” The president was not only stoking violence. He was undermining democracy.As the insurrectionists entered the Capitol, one declared “we are the people.” The rioters saw their actions as the rightful replacement for the constitutional way presidents are elected in this country. There was no better symbol of the threat to that legal process than that the electoral ballots themselves had to be ushered out of the Senate chamber to protect them from the rioters.The obligation of Congress—beyond just what it is allowed to do—in such a circumstance is to ensure that such an enemy of democracy and law never holds office again. Congress can do that by impeaching President Trump, convicting him, then disqualifying him from holding public office again. This disqualification would further deny Trump the ability to use his sizeable reelection fund to seek future office, a restriction which would place an important limit on the resources he has at his disposal to undermine democracy.Invoking the 25th Amendment would allow the Cabinet to remove a president “unable” to do the job—an important option in restoring our democracy. However, it is crucial to note that this removal would not affect his ability to run for office again. Only impeachment and a Senate vote to disqualify can do that, so it is essential that, regardless of the Cabinet’s actions, the Congress act to impeach, remove, and disqualify him.Even if the House does not impeach Trump within the next two weeks, Congress should still move to impeach and disqualify him after he has left office. There is an active scholarly debate on whether a former president can be impeached, and no court has yet definitively ruled on the matter. Still, Congress should attempt this approach after the two new Democratic senators from Georgia are seated to ensure it does everything in its power to keep Trump from threatening democracy in the future.On Wednesday, the Congress lived up to its proud democratic duty by reconvening to continue the process of certifying the election. But if Trump is allowed to take office again, what we saw might just be a dress rehearsal for broader efforts to destroy democracy and the rule of law. Disqualification would deny him the chance to even try to wreak such destruction.Corey Brettschneider is a political science professor at Brown. He is the author of The Oath and the Office: A Guide to the Constitution for Future Presidents, and the editor of the new book The Decisions and Dissents of Justice Ruth Bader Ginsburg, part of his new series, Penguin Liberty More