Because the Senate failed to convict Trump in the impeachment trial, Congress should immediately take action to ensure that Trump is held accountable under Section 3 — an action endorsed by legal scholars. Ideally, Congress would enact legislation that both establishes judicial procedures to enforce Section 3 and expresses Congress’s conclusion — based on factual findings — that Trump engaged in insurrection within the meaning of Section 3. But even a resolution that only does the latter would cast serious doubt on Trump’s eligibility to run for president in 2024.
In addition to not being subject to a two-thirds majority vote, such legislation has numerous advantages. First, it would provide a strong basis for state election officials or political opponents to challenge his candidacy based on Congress’s finding that Section 3 disqualifies him from holding office. This would create a cloud of illegitimacy over a potential Trump candidacy, deterring supporters and donors. Second, while it is most important to prevent any future Trump campaign, any judicial procedures created by Congress could also be used to disqualify others involved in the Jan. 6 insurrection from holding future office.
Finally, and critically, many Senate Republicans, both before and during the impeachment trial, have acknowledged Trump’s grave misconduct. At the same time, many nonetheless voted to acquit on procedural grounds, maintaining that the trial of a former officeholder is unconstitutional. While this perspective is widely disputed even by conservative legal scholars, it need not matter. The Constitution provides senators with a separate tailor-made tool for precisely the conduct for which they have condemned Trump. They should use it.