As the nation now focuses on getting through the final two weeks of the presidency of Donald Trump, debate has begun about whether to remove him 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, followed by a vote by the Senate to disqualify the president of the United States from future federal public office.
The disqualification vote has received less attention than the power of Congress to remove the president. After a House majority vote to impeach and a two-thirds Senate vote to convict and remove, there is a second vote. A mere majority of the Senate can inflict a penalty that would prevent Trump from holding office again.
Two precedents establish the procedure. In 1907 a judge named West Humphreys was convicted by two thirds of the Senate and then disqualified from future federal office. In an eerie foreshadowing of what we just witnessed, Humphreys was convicted of “disregarding his duties as a citizen”, because he had “endeavored by public speech to incite revolt and rebellion against the United States”. A second disqualification was voted upon in 1936 in a case involving judge Robert Archbald, and the Humphreys precedent for the majority requirement for disqualification was also cited in 1936 in a third case where the Senate did not impose the penalty of disqualification.
Disqualification is the most severe punishment for a “high crime and misdemeanor”. Although it has been used in impeachments of federal judges, it has never been inflicted on a US president. But now we have crystal clear evidence of a crime that requires this extreme punishment.
Consider: on Wednesday the president of the United States incited a mob to descend on Congress with a clear intent 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.
But 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. Without it, we risk a collapse into the kind of violence we saw yesterday 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, not just its right, in such a circumstance is to ensure that such an enemy of democracy and law never holds office again. And they can do that by voting to disqualify Donald Trump from holding public office again.
Amid talk of the 25th amendment and the power it would grant the cabinet to remove a president “unable” to do the job, it is crucial to note that would not effect his ability to run again. Only impeachment and a Senate vote to disqualify can do that, so it is essential that regardless of the cabinet’s actions the House act now.
But even if the House and Senate do not act within the next two weeks the punishment of disqualification can also be inflicted after Trump leaves office. While ideally it would be meted out now that possibility should be a fall-back option that could be used after the president has left office and the two new Democratic senators from Georgia take their seats.
Such a punishment, even after Trump left office, would deny him the ability to use his re-election fund to seek future office, an important cutting off of his resources.
On Wednesday the Congress did itself proud 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 efforts to destroy democracy and the rule of law. Next time Trump and his insurrectionists might win. 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.