Twice, in early 2020 and in early 2021, Congress had the option of driving Donald Trump, permanently, out of presidential politics.  Both attempts to convict him of impeachment charges failed.  Had he been convicted by the Senate of any of those charges, the Senate probably would also have barred him from seeking the Presidency, ever again – a remedy the Constitution permits.

Now that Trump has again become a candidate for the White House, could a third time succeed?  That may be tested in coming weeks in Washington – but not by a new impeachment.

Last week, 41 Democrats in the House of Representatives introduced a bill that would have Congress declare Trump to be ineligible to seek the Presidency.  And, tomorrow, the House’s special January 6 Committee is reportedly going to suggest that he be prosecuted for a crime that, if he is found guilty, might have the same result.

The first option – the new House bill — is surrounded by deep uncertainty: political doubts about whether such a measure could pass both houses, and, if it did, constitutional questions about Congress’s authority to act on its own to strip him of the right to run and about what role, if any, the courts would play.

Time is short in Congress before the Republicans take control of the House, and, in the meantime, there is little chance that the measure could overcome a filibuster in the Senate — probably spelling political doom for that option.  On the constitutional uncertainties, there are some court precedents in American history in the background, but they didn’t apply to a presidential candidate, so they do not fully resolve those issues.

The second option – the January 6 Committee’s prosecution suggestion — depends upon whether Attorney General Merrick Garland would act on a congressional recommendation (or on the results of the Justice Department’s own investigation) and approve a charge of insurrection against Trump, whether a jury would convict him at a trial, and what roles Congress and the courts might play in that scenario.  No U.S. President has ever been charged with a crime, so there are no precedents here.

All of these complications, for either option, could be affected by what the Constitution itself says, and by how today’s polarized politics might influence outcomes.  In the current volatile environment of politically-related violence, like the riot at the Capitol on January 6, 2021, that is at the center of both options, new official action against Trump might send mobs into the streets again, in Washington and elsewhere.

Beneath all of this uncertainty is a single word: insurrection.  Of most significance is what the federal crime code and the Constitution itself say about insurrection.  Is it up to Congress, the courts, or both to spell out what that means?

Under a federal law originally passed in 1862, obviously aimed at the Confederate leaders and their armies then engaged in rebellion, it is a federal crime for anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”  It specifies that those convicted “shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” (emphasis added)

Six years after that law was enacted, after the Civil War, the Fourteenth Amendment was added to the Constitution, and part of it spelled out one of the consequences of the rebellion.  Section 3’s key phrases read this way: “No 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 rebellion against the same, or given aid or comfort to the enemies thereof.”  (emphasis added)

The Amendment’s Section 5 gives Congress explicit authority to enforce the Amendment “by appropriate legislation.”

Seeking to use that authority, sponsors in the House of Representatives introduced the new bill, which recites the Amendment’s Sections 3 and 5 and fills out the meaning of the significant wording.  It says that “the Presidency is an office under the United States.”  It then moves on, declaring in the next paragraph: “Mr. Donald J. Trump did engage in insurrection against the United States by mobilizing, inciting, and aiding those who attacked the United States Capitol on January 6, 2021, to disrupt certification of the 2020 Presidential election…”  It then says that, in their impeachment votes in early 2021, majorities in the House and in the Senate “concluded as much” – that is, concluded that Trump had taken the very action condemned by Section 3.

Then, the following 25 pages summarize the evidence developed by the January 6 Committee’s investigation, then conclude that Trump “is ineligible to again hold the office of President of the United States, or to hold any office, civil or military, under the United States.”

Presumably, some of that same evidence will be cited by the January 6 Committee if it does, as various news stories have reported, go ahead on Monday with a referral of Trump to the Justice Department for prosecution under the insurrection law.

Some of the key constitutional questions that will arise, if either or both of those options moves forward, are these:

• Is it a task for Congress, or for the courts, or both acting separately, to define who is an “officer under the United States”? In other words, is that a “political question” for Congress, or a “judicial question” for the courts?
• Whose task is it to define what a “rebellion” or an “insurrection” is? Does the January 6 Committee’s evidence provide the answers, especially as to Trump personally?  Has the Justice Department found the answers in its own investigation of the attack on the Capitol, especially as to Trump?
• Do the House bill and a criminal charge of insurrection create specific additional qualification for a President, beyond those specifically listed in the Constitution, and can Congress or the courts do that without interfering with the people’s right to vote for candidates who otherwise would be eligible to run for that office?
• Is a formal declaration by Congress of ineligibility to seek the Presidency a form of legislative punishment, forbidden by the specific provision in the Constitution that forbids such punishment without a trial (the “bill of attainder” ban in Article I?
• Why isn’t impeachment the preferred, and maybe the only, method that the Constitution specifies as the way to deal with a President who, while in office, takes part in a rebellion or insurrection?

The Supreme Court has not provided definite answers to those questions.  For example, there is no explicit precedent spelling out whether the Presidency is an “office under the United States” – that odd phrase used several times in the Constitution.

In two important precedents, in 1969 and 1995, the Court ruled emphatically that Congress, the courts and the states cannot add new qualifications to those in the Constitution for eligibility to run for Congress, and it said that was a question for the courts, not a political question.  (Powell v. McCormack, 1969, and U.S. Term Limits v. Thornton, 1995)

In those precedents, though, it left undecided whether the same limitation on new qualifications applies to  candidates for the Presidency, and whether that question is a judicial or a political one.

In a decision in 1946 (U.S. v. Lovett), it ruled that it was an unconstitutional “bill of attainder” when Congress ordered the Treasury not to pay the salaries of several State Department officials whom Congress suspected of not being loyal to the United States.  But that was a salary issue only, not a qualifications question, and it did not involve the Presidency.

Whatever emerges now, in Washington’s dealings with Donald Trump, will be writing new constitutional history.