Could Merrick Garland use the Fourteenth Amendment to bar Trump from the presidency?

Two days after Donald Trump announced his campaign for the 2024 presidential election, Attorney General Merrick Garland said he was appointing a special counsel to investigate possible crimes relating to Trump’s taking of classified documents to his Florida residence at Mar-a-Lago, and with respect to Trump’s actions related to the Jan. 6 riot at the U.S. Capitol.

The timing was no coincidence. “Based on recent developments, including the former president’s announcement that he is a candidate for president in the next election and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” explained Garland.

Wait, why is it in the “public interest” to appoint a special counsel only if Trump is running for the presidency? If he committed crimes, shouldn’t the attorney general be prosecuting him anyway?

And why is Biden’s likely candidacy a factor? Is the attorney general using the power of his office to protect Biden from a Trump challenge? If that were the case, it’s Garland who should be prosecuted and removed from office.

And how would the attorney general stop Trump from running again? The answer may be that Garland is hoping to invoke the Fourteenth Amendment.

It wouldn’t be the first time Democrats pushed that step.

Democrats were all abuzz in late 2020 and early 2021 with the prospect of using the Fourteenth Amendment to bar Trump from ever holding office again.

On Jan. 10, 2021, House Speaker Nancy Pelosi (D-Calif.) wrote to Democratic members of the House of Representatives, “I look forward to our Caucus call tomorrow. I am grateful to all Members for the suggestions, observations and input that you have been sending. Your views on the 25^th Amendment, 14^th Amendment Section 3 and impeachment are valued as we continue.” Section 3 is the Fourteenth Amendment’s Disqualification Clause.

One major difference between now and when Pelosi wrote that letter is that the attorney general appears willing to proceed with efforts to keep Trump on the presidential sidelines. And the most likely avenue would be to use the Fourteenth Amendment’s insurrection provision, which states in part, “No Person … shall hold any office … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same. …”

The nonpartisan Congressional Research Service (CRS) has published a short analysis — interestingly, updated on Sept. 7, 2022, presumably because members of Congress are asking questions. CRS examines the history of the amendment, which was ratified by the states in 1868, addressing issues relating to the Civil War.

The problem for Democrats is that it isn’t at all clear how to initiate a Fourteenth Amendment challenge against a former president: Who manages the process? What actions meet the standard of “engaging in insurrection”? And could anyone prove Trump’s actions on or before the Jan. 6 Capitol riot rose to that level?

The amendment and other related statutes provide little guidance, and there are only a few existing precedents. Congress last used Section 3 in 1919 to deny a seat to a congressman accused of “giving aid and comfort” to Germany during World War I, according to the CRS. Thus, applying the amendment to the current situation with a past president’s previous actions, either real or perceived, puts us in uncharted waters.

The CRS does say that Congress could pass legislation that would clarify some of these questions, but the House will be in Republican hands come January. And even though there is a growing number of Republicans who don’t want Trump to run again, it seems extremely unlikely they would vote with Democrats to bar him from returning to office.

In short, it’s likely no one knows how a Fourteenth Amendment challenge would work given the current circumstances. But the CRS does say Congress might enforce the Disqualification Clause by “relying on federal criminal prosecution for insurrection or treason.” That’s where Garland might play a role, and it provides a reason why he would appoint a special counsel.

More importantly, Garland’s actions raise serious questions, not so much about Trump but about the attorney general himself. Having never accepted Trump’s victory in 2016, Democrats have been on a years-long quest to (1) kick him out of office when he was president (hence two impeachment trials and consideration of a Twenty-Fifth Amendment removal) and (2) keep him from ever holding office again.

I don’t think Trump should run again, but an attorney general has no business trying to ensure he can’t. If that’s Garland’s motive, he’s the one who should be on trial.

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.