Former President Donald Trump is almost universally expected to run again in 2024 amid multiple ongoing civil and criminal probes into his actions during his single term as well as his personal business ventures.
The highest-profile cases are being handled by the House Select Committee to Investigate the January 6th Attack on the United States Capitol, which Trump incited, as well as the state of Georgia, where Fulton County District Attorney Fani Willis has convened a grand jury to determine whether Trump broke the law when he tried to strongarm Secretary of State Brad Raffensberger and other elections officials into overturning President Joe Biden's Electoral College victory.
So far, Attorney General Merrick Garland and the Department of Justice have given no indication if Trump is on their radar for potential indictment and prosecution. Even if he is, there are technically no legal barriers to him launching a presidential campaign or getting elected while under law enforcement's microscope. Plus, there is no guarantee that Garland or Willis would secure a conviction, despite the voluminous evidence that has already been presented to the public.
But one idea has emerged that could stop Trump in his tracks. And all it would take is an act of political courage by lawmakers on Capitol Hill.
Congress "should exercise its constitutional authority to prohibit Trump from seeking the presidency again," Edward Foley, the Ebersold Chair in Constitutional Law at Ohio State University and head of its election law program, wrote in a Washington Post editorial on Thursday.
To accomplish that end, Foley explained, the House of Representatives and Senate can tap into the 14th Amendment – which bars individuals who participate in insurrections from holding office – to pass a law "that would authorize the Justice Department to file a civil suit to prohibit Trump" from mounting a third (or fourth, if you count his Reform Party bid in 2000) attempt at the White House.
"Congress can make clear as part of its new statute," Foley continued, "that it deems the January 6th assault on the constitutional procedure for counting the electoral vote to amount to an 'insurrection' for purposes of the 14th Amendment’s disqualification clause."
While such an action would indeed be unprecedented – and have to come to fruition quite quickly – Foley conceded that it carries some tricky challenges.
First, Foley explained, "Congress could have achieved the same goal by convicting Trump in the second impeachment trial — the one charging him with incitement of the insurrection — and this would have resulted in disqualifying Trump from holding federal office again."
Trump was acquitted by Republicans in the Senate, in part because he had already left office, as Minority Leader Mitch McConnell (R-Kentucky) maintained at the time. Now that Trump is a private citizen, however, "that argument wouldn’t apply here," giving Congress "the chance for a do-over — if it’s willing to take it," Foley said.
That begets the second issue.
"Ten Republican Senators would have to agree to overcome a filibuster. But seven Republicans voted to convict Trump in the second impeachment proceeding," Foley noted. "It is not impossible to imagine that three more would be willing to vote in favor of this statute. After all, they don’t have to make the declaration that Trump is unfit for office; they need only allow the Justice Department to pursue disqualification in court."
Third, Foley continued, "Congress can’t specifically label Trump as a disqualified insurrectionist in such a statute. That would risk judicial invalidation for violating a separate constitutional provision, the 'bill of attainder' clause, which prohibits Congress, as the legislative branch of government, from determining a specific individual’s liability under the law."
Congress would therefore have to "further define for purposes of these civil adjudications that participants include anyone who orchestrated or advanced the insurrection without personally taking up arms at the Capitol," Foley added.
That umbrella would encompass Trump.
Foley further points out one additional advantage to his approach – that it "would avoid all the extra burdens of a criminal trial, including proof beyond a reasonable doubt."
He stressed that "safeguarding the 2024 election from the kind of subversion that Trump attempted in 2020 does not require putting him in prison for his past criminality. Instead, what is necessary is to disable him from being a candidate again."
It would also not preclude filing criminal cases against Trump.
