First,
the 14th Amendment does not require the Senate to conclude that Trump engaged in an insurrection. The amendment requires only that Congress conclude that Trump gave aid or comfort to enemies of the Constitution. This he did, both on Jan. 6 and in the broader context of the events after the presidential election of 2020.
The House of Representatives has already adopted this conclusion. The article of impeachment adopted by the House found that Trump violated his oath to defend the Constitution “by willfully inciting violence against the Government of the United States.” It also found that this conduct was “consistent with his prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” Thus, the House concluded, “In all of this, President Trump gravely endangered the security of the United States and its institutions of government.”
Hemel’s explanation of the relevant standard confused matters a bit because he discussed how “aid and comfort” was defined under the criminal law of treason, which applies to enemies “of the United States.”
The 14th Amendment is not identical to the criminal law of treason: It refers to enemies of the Constitution.
What America just experienced was an assault by enemies at home who, while claiming to be patriots, sought to override and thus overthrow the Constitution’s procedures for electing a president. Though he had sworn to defend the Constitution as a public official, Trump gave aid and comfort to these enemies of the Constitution. He thereby, under the 14th Amendment, disqualified himself from holding future office unless the Congress chooses to remove the disqualification by a two-thirds vote.
The House already voted that Trump aided these enemies. The Senate could therefore just concur with the House’s conclusion, by majority vote, in a resolution. To make the legal implication of this shared conclusion clear, the resolution could add that, by these actions, Donald Trump gave aid or comfort to enemies of the Constitution of the United States. This would explicitly invoke the 14th Amendment standard. Period.
Magliocca is reluctant to find power for a congressional finding because he believes some judicial involvement is needed to establish 14th Amendment disability. But
the 14th Amendment expressly gives Congress the direct constitutional authority to enforce its provisions, including by legislation.
Some might worry that a congressional finding violates the constitutional prohibition on bills of attainder, a legislative act that pronounces an individual’s guilt of a certain crime. But the congressional finding is not a prohibited bill of attainder. It is not a criminal conviction. The criminal law of treason is a separate matter with its own burdens of proof and penalties.