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The chances of the US Senate convicting Donald Trump in his second impeachment trial were always low. As I wrote in The Independent last month, several Republican senators voted to end the trial before House impeachment managers even got a chance to make their case, making the chances of 17 Republicans joining all 50 Democrats in a conviction vote that much more unlikely.

But one form of accountability that Trump — as well as the Republicans who supported the effort to overturn the election — may yet face could come from the 14th Amendment. Section 3 states that anyone who “engaged in insurrection or rebellion,” and those who gave “aid or comfort” to insurrectionists, will be ineligible to hold federal office. The amendment was ratified in 1868, just after the Civil War, and sought to prevent remnants of the Confederacy from attempting to seize power in the future.

“The language in Section 3 applies to anybody who has made an oath to the Constitution and then violates that oath,” Civil War historian Eric Foner told The Washington Post.

(A gallows pro-Trump insurrectionists erected outside of the US Capitol on January 6, 2021. Photo by Tyler Merbler/Wikimedia Commons/CC BY 2.0)

Congresswoman Zoe Lofgren (D-California) may have just made public the bulk of evidence that could be used to justify invoking the 14th Amendment against the 139 House Republicans who voted to decertify the results of the 2020 election (eight Senate Republicans also voted to overturn the election).

Over the weekend, Rep. Lofgren published a 1,939-page report documenting social media posts from those 139 Republicans egging on the big lie that led up to the January 6 insurrection, and in some cases, continuing to do so after the attack was underway. Lofgren stated that, even beyond expelling members of Congress, the report could be used for potential criminal charges:

"Statements which are readily available in the public arena may be part of any consideration of Congress' constitutional prerogatives and responsibilities," Lofgren writes. "Accordingly, I asked my staff to take a quick look at public social media posts of Members who voted to overturn the 2020 presidential election."

All information in the report was already available publicly, but this is the first comprehensive review of how lawmakers relentlessly promoted falsehoods about the election on Facebook and Twitter. It compiles posts between November 3, 2020 and January 31, 2021 from the 147 House Republicans who voted to overturn the election's outcome.

The report shows that some of former President Donald Trump's most vocal supporters in the House posted more than 100 attacks on the election's integrity in less than three months. 

Of course, the prospect of a Democratic House majority suddenly voting to rule more than half of the Republican Caucus ineligible to hold office would be a drastic move. However drastic, the move would still be legal, according to legal experts I consulted.

“The 14th Amendment does not say who makes the determination or how it is to be made,” Dr. Erwin Chemerinsky, dean of the UC-Berkeley School of Law, wrote in an email. “But historical practice suggests the House could do this as[sic] to one of its members by majority vote.”

“The House (and Senate) could certainly try to invoke Section 3. It isn’t at all a frivolous argument,” University of Texas Law School constitutional law professor Dr. Sanford Levinson told me. “It would instantly be challenged in court.”

Levinson outlined three possibilities: The first is that courts would dismiss the invocation of the 14th Amendment as a “political question,” meaning that insurrectionist Republicans’ future would be up for voters to decide in the 2022 midterms. The second would be that the court accepts the validity of the disqualification, and the third would be to strike it down and declare it Congressional overreach.

“There are plausible arguments going both ways,” Dr. Levinson continued. “The main thing I’m confident of is that it would escalate the polarization considerably.”

The legal battle surrounding the potential of 147 Republicans being deemed by Congress to be ineligible to hold federal office would almost certainly be a bitter one. While Trump appointed more than 200 federal judges during his four years in office, it’s likely the question would eventually come before the Supreme Court, which still has a 6-3 conservative majority.

However, the question of interpreting the 14th Amendment could be a toss-up for originalist conservative justices like Amy Coney Barrett and Brett Kavanaugh (originalists believe in interpreting the Constitution according to how an amendment was understood at the time of its ratification).

In 1868, with the Civil War still fresh in everyone’s minds, it’s hard to argue those who helped ratify it didn’t intend for insurrectionists to be permanently banned from holding federal office. And given that the January 6 attack killed 5 and could have potentially been a much bloodier massacre if Officer Eugene Goodman’s attempt to distract terrorists from breaching the Senate didn’t work, it would be hard to interpret the events of that day as anything but an insurrection.

Whatever the end result may be, it’s urgent for Democrats to use all available means to hold insurrectionist Republicans accountable for stoking dangerous lies and fomenting the Capitol attack. If they wait too long, justice for January 6 may never occur.