Friday, February 12, 2021

Section Three Applies to Former Officials

Gerard N. Magliocca

A leading argument by Republican Senators is that they cannot convict the ex-President because he is an ex-President. Whatever you think of that argument, the same rationale does not apply to a concurrent resolution finding the ex-President ineligible to serve under Section Three of the 14th Amendment.

Section Three was widely applied to former federal officials. Any federal official who joined the Confederacy was rendered ineligible to serve again (without relief from Congress) under Section Three. All of these men were ex-federal officials in 1868 when the Fourteenth Amendment was ratified, as none of them (save a few given a waiver by Congress) were back serving in federal office by then. Accordingly, no Senator can say that he or she cannot express a view on Donald Trump's ineligibility under Section 3 because he is no longer in office. Likewise, a Senator could be consistent in voting not guilty but voting for a concurrent resolution that says Trump is ineligible under Section Three.


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