When the House delivers its Article of Impeachment against former President Donald Trump to the U.S. Senate, it will take a two-thirds vote after a trial to convict him of conspiracy to commit insurrection.
However, since Trump has already left office, there is another procedure which the Senate could also follow. It could pass, by simple majority vote, a resolution agreeing with the House determination that Trump violated Section 2384 of the U.S. Code by promoting others "by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof" which by definition, is sedition.
After the Senate passes such a bill, the House could then deliver the Article of Impeachment and the Senate can proceed with the impeachment trial. The bill of censure which they would have passed — relating to the 14th Amendment — would be discrete from any Senate trial held pursuant to the Article of Impeachment but it would prohibit Trump from ever again seeking public office.
After the Civil War, the Confederate states were permitted to reenter the Union only if they ratified the 14th Amendment. Section 3 of the amendment provides that "[n]o person shall … hold any office, civil or military, under the United States who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or given aid or comfort to the enemies thereof." Of course, the framers of that amendment had the traitorous secessionists of the Confederacy in mind, but the courts have held that the broad language of the 14th Amendment should not be read restrictively. For example, when the amendment calls for equality to be afforded to "persons," although the late Justice Antonin Scalia was correct when he argued that the only "persons" the framers had in mind were former slaves, the courts (with Scalia dissenting) have included women and gay people as coming under the protective umbrella of "persons."
We all saw and know some of the things that led to the deadly riot of Jan. 6. We heard Trump telling a crowd he summoned that he had won an election he knew he had lost — telling his loyal followers: "If you don’t fight like hell, you’re not going to have a country anymore" — and urging them to march on the Capitol where Congress was fulfilling its constitutional duty to count electoral votes. The riotous mob bearing Trump banners, Confederate flags and the costumes of bigots was responsible for the killing and mayhem that followed, and by "force" it also "hindered" and "delayed" the vote count certifying then-President-elect Joe Biden.
Professor Alan Dershowitz said that Trump’s speech is protected by the First Amendment. He knows better. The Supreme Court has said that when speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" then it is "seditious speech" which is not protected.
Even some of the former president’s staunchest congressional supporters, including Senate Minority Leader Mitch McConnell, believe that Trump’s actions and rhetoric were the catalyst for the riot which has diminished us as a nation. The Senate by a simple majority vote can define the Republican Party and reshape our American democracy by seeing to it that Trump will no longer be able to raise funds and organize for a future political campaign. As the founder of my Republican Party, Abraham Lincoln, said: "America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.