If a conviction of a seditious president does not happen, House and Senate Democrats may push for a censure resolution to bar former President Donald Trump from holding future office(s) over his role in the U.S. Capitol riot. While censure is not specifically mentioned in the U.S. Constitution, Congress has the right to adopt resolutions, and a resolution to invoke censure would be constitutional.
The first use of censure was directed at a member of George Washington's cabinet. Alexander Hamilton, Washington's treasury secretary. He was accused of mishandling congressional authorized loans. Congress voted a censure resolution against him. The vote fell short, but it established censure as a precedent.
Also, the effort to draft a censure resolution can invoke Section 3 of the 14th Amendment as Sen. Tim Kaine (D-VA) and Sen. Susan Collins (R-ME) have contemplated.
Section 3 of the 14th Amendment provides an alternative path for disqualification of Donald Trump, stating that no person shall hold office if they have engaged in "insurrection or rebellion" against the United States.
But Democrats prefer to see Trump convicted in the impeachment trial, Republicans fear political consequences or worse.
With the QAnon wing of the Republican party becoming its standard bearer, some Republicans see the consequences of Trump holding office again much darker than a few Rs losing their seats.
While a group of Democratic lawmakers want to proceed with the censure resolution, some Democratic lawyers warn the strategy could backfire and provide Trump with a rallying cry to run again for president in 2024 which would be disastrous for our Republic.
Ten Republican congressmen joined House Democrats last month to impeach Trump for a second time over "incitement of insurrection" on Jan. 6.
Trump's impeachment trial began this week, where he is widely expected to be acquitted because conviction would require 17 Republican senators to join all 50 Democrats. Only 6 Senate Republicans voted for the constitutionality of this impeachment on Tuesday this week.
Sadly, as the likelihood of Trump's acquittal grows, so too have calls within the Democratic caucus for an alternative path to prevent Trump from holding office again.
Their attention has focused on Section 3 of the 14th Amendment that allows Congress to bar individuals from holding office if they have "engaged in insurrection." In this instance a resolution to censure Trump would only require a simple majority (50% + 1) vote to pass in the House and Senate.
The real goal here is disqualification.
Some of the most highly regarded Constitutional scholars including Michael Gerhardt, Lawrence Tribe, Bruce Ackerman, and Erwin Chemerinsky have advised lawmakers on the constitutional questions.
Ackerman, a professor of constitutional law at Yale University, said that President Joe Biden would not be required to sign the resolution -- but that nothing would stop him from voluntarily endorsing the effort, "vindicating the Constitution's continuing importance."
"The decisive precedent was established by Congress in 1869 when it implemented Section 3 through a Joint Resolution to disqualify all Confederate officials from service, and the three conservative justices appointed to the Supreme Court by Trump would likely read this as it was originally intended and support that the Congress is on sound legal footing", Ackerman said.
Sen. Dick Durbin (D-Ill) , chair of the Judiciary Committee, suggested that a resolution of this kind could follow an acquittal.
But the Constitution does not allow Congress to punish an individual over a crime without due process or a trial -- a process referred to in the founding document as a "bill of attainder". Democratic lawyers have warned members of Congress that any move to bar Trump from holding office without conviction at an impeachment trial could provide him with a strong future constitutional argument.
But Peggy Noonan, a Republican speech writer, said it best when commenting on Democrat Bill Clinton's impeachment, "the pursuit of justice is the business of a great nation. In winning this point, Republicans caught the falling flag, a triumph for the rule of law, a reassertion that no man is above it, and a rebuke for an arrogance that had grown imperial."
If Republicans put country above party this time, there will be no need for a censure resolution.