Elizabeth Wydra: Can Mitt Romney do more to protect us from Donald Trump?

Utah senator could lead a move to invoke the 14th Amendment to ban Trump from holding office again.

(Leah Hogsten | The Salt Lake Tribune) Members of Move-On staged a rally outside the Wallace F. Bennett Federal Building to encourage Sen. Mitt Romney to vote to impeach former President Donald Trump, Feb. 12, 2021.

A lot has happened since the Jan. 6 attack on the U.S. Capitol, including the acquittal of former President Trump on charges of impeachment. While some may be eager to “move on” from the events of that terrible day, much of the nation will be unable to forget.

In an attack that left police officers dead, while threatening the lives of Vice President Mike Pence, House Speaker Nancy Pelosi and other members of Congress, the violent mob that day shattered not only life and property, but also America’s sacred, centuries-long tradition of holding a peaceful transfer of power between presidential administrations.

Rioters who smashed into the U.S. Capitol — including some from Utah — did so for one key reason and at the behest of one person.

Their violent insurrection was incited by former President Donald Trump in an effort to stop the counting of electoral votes, overturn the choice of the American people in the 2020 presidential election, and keep Trump in the White House.

As House Republican Conference Chair Liz Cheney put it, “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”

Sadly, however, 43 Republican Senators countenanced this betrayal when, in the face of overwhelming evidence presented at his second impeachment trial, they voted to acquit Trump.

Convicting Trump, as Sen. Mitt Romney rightly voted to do, would have allowed the Senate to disqualify Trump from ever again holding federal office. That would have protected the nation from Trump attaining the White House in the future, where he would be able to continue undermining American democracy.

Does the Senate’s failure to convict, however, spell the end of constitutional accountability for the former president? Thankfully for our nation, it does not.

Members of Congress such as Romney have an additional method of accountability handed down to us by the framers of the 14th Amendment, which was drafted and enshrined in our Constitution in the wake of the Civil War.

One of its provisions, Section Three, includes the prohibition against allowing anyone who has taken an oath to support the Constitution from holding “any office, civil or military, under the United States, or under any State” if he or she has “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.”

The uniquely disqualifying nature of Trump’s acts leading up to and on Jan. 6 is that they implicate not just one, but two, provisions of the Constitution.

Not only were his actions high crimes and misdemeanors — conduct susceptible to impeachment, removal and disqualification under the Constitution’s impeachment clauses — but they also subject him to being disqualified under Section Three of the 14th Amendment.

For members of Congress such as Romney, who objectively evaluated the evidence and judged, correctly, that Trump was guilty, invoking Section Three should be an easy choice.

Importantly, however, Section Three should also be attractive to senators — most prominently Minority Leader Mitch McConnell among them — who found that Trump bore responsibility for the insurrection, even as they refused to convict him on the article of impeachment.

Senators, led by Romney, could recognize the serious threat presented by Trump and initiate proceedings to pass legislation that indicates the view of Congress that Section Three applies to Trump, while also establishing a formal enforcement mechanism for federal courts to evaluate the issue.

Alternatively, Romney could initiate a resolution, a kind of congressional action that lacks the force of law, but which could present facts and the sense of Congress that Section Three applies to Trump. Such action could still provide a foundation for legal challenges from others who might question Trump’s eligibility to appear on the ballot ever again.

The bottom line is simple. While great issues of the economy and the pandemic continue to loom incredibly large for millions of Americans in our daily lives, the question of accountability for a former president who incited an insurrection against our democracy remains. Leaders such as Romney need not treat these tasks as mutually exclusive.

To protect our nation in the years ahead, we must not only overcome the pandemic and rebuild our economy. We must also have constitutional accountability. The framers of the 14th Amendment worried about the destabilizing effect of permitting reelection of leaders who engaged in rebellion or insurrection against our nation. So should we.

Elizabeth Wydra

Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text, history and values. Follow her on Twitter @ElizabethWydra.