A provision of the Constitution designed to bar Confederate leaders from office may keep Trump from running again.
Donald Trump might already be ineligible to serve as president of the United States in the future. That's true even without an impeachment process that ends with a formal ban from future public office.
The relevant constitutional provision is Section 3 of the 14th Amendment, enacted in the aftermath of the Civil War and mentioned in the article of impeachment proposed before the House today. The provision bars a person from holding any office "under the United States" if the person has sworn an oath of allegiance to the Constitution and then "engaged in insurrection or rebellion" against the government or "given aid to the enemies" of the U.S.
Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president.
The trickier question is the second part: Has Trump's conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021. Because this is a constitutional question, the courts will have to adjudicate it.
The first question is whether the attack on the Capitol was an insurrection against the government of the United States. In vernacular terms, it certainly was. Republicans like Mitt Romney and Mitch McConnell called it an insurrection right off the bat. The article of impeachment speaks of insurrection. But what we need is the legal definition under the Constitution, not the usage of politicians in the heat of the moment.
The Constitution doesn't define insurrection. Neither does the Insurrection Act, the federal statute that you might expect to include a definition. Most dictionary definitions of insurrection call it a violent uprising against the government. Not all of the Jan. 6 participants were violent, of course. But some were.
As for the uprising part, again, not all the rioters wanted to bring down the government. But at least some clearly intended to interfere temporarily with the congressional process for declaring Joe Biden to be president. At least some wanted to use force to compel Congress to declare Trump, not Biden, the president-elect. That act would have subverted the democratic process. In some sense, at least, it would have amounted to overturning the U.S. government by force.
The upshot is that, at least with regard to the mob itself, it seems possible that a court could conclude that an insurrection was happening on Jan. 6. It isn't a slam-dunk case; the authors of the 14th Amendment almost certainly had in mind an insurrection much more like the Civil War. But a court would certainly have enough reason to find that Jan. 6 involved an insurrection for it to be worthwhile for us to go on to the next question.
That question is, assuming the march on the Capitol was an insurrection: Did Trump himself engage in insurrection when he spoke to the crowd and encouraged or incited the march? If a court says yes, Trump isn't eligible to be president again.
It's worth noticing that the 14th Amendment does not use the word "sedition," which is often employed to describe verbal acts that organize or plan an insurrection. That absence could be used by Trump or his lawyers to argue that even if the march on the Capitol was an insurrection, and even if Trump verbally helped bring it about, he was not himself "engaged" in insurrection for purposes of the 14th Amendment ban on holding office.
The counterargument would be that insurrection necessarily requires a level of verbal encouragement and planning — and that inciting a crowd to engage in insurrection is every bit as insurrectionary as rebelling oneself. If this is right, then the question becomes whether Trump actually incited insurrection.
Answering this question in a constitutional way will not be simple. If this were a criminal prosecution, the First Amendment would apply, and the relevant test would be the one drawn from the landmark 1969 case Brandenburg v. Ohio. The case says that the government can't punish speech advocating force unless the speech is "directed to inciting or producing imminent lawless action and is likely to produce such action."
Trump's Jan. 6 speech is close to the line. On the one hand, circumstances could be read to interpret his words as encouraging the crowd to enter the Capitol forcefully, which was a crime. On the other hand, Trump chose his words very carefully. His direct speech did not call for criminal action in any explicit way. And it would be difficult to prove that he intended the crowd to breach the Capitol. Thus it's possible that Trump's words might not meet the Brandenburg standard, if it requires explicit words or proof of intent — and it may well require both.
Ah, but Section 3 of the 14th Amendment is not a criminal sanction! And because the provision is in the Constitution, it arguably is not limited by the First Amendment. So a court could still conclude that Trump's words counted as insurrection for the purposes of the 14th Amendment even if they would not have qualified as incitement under the Brandenburg standard. That means Trump could be barred from holding office for an act that would not get him thrown in jail.
In practice, it's unlikely that a court would be prepared to disqualify a former president from running for office again. But it's a close issue — and one the Supreme Court may have to take up if Trump announces a 2024 candidacy.
Disclaimer: This article first appeared on bloomberg.com, and is published by special syndication arrangement.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.