The effort to disqualify President Trump from the White House on the basis of Section Three of the Constitution’s 14th Amendment could be set to enter a fresh phase if Democrats capture the House and hold the Senate. If Trump wins — or if he loses — Democratic lawmakers could try to box out the 45th president.  

That section of the parchment disqualifies former government officials from holding office if they took an oath to support the Constitution but then betrayed it by engaging in an insurrection. Democrats have long sought to bar Trump on this basis of his role in attempting to reverse the results of the last presidential election.

One Democrat, Representative Jamie Raskin, told the Daily Beast, “We will not go along with any fraud. We’re going to stand up for a fair and honest election, as we always have.” Mr. Raskin last year told CNN that of “all of the forms of disqualification that we have, the one that disqualifies people for engaging in insurrection is the most democratic because it’s the one where people choose themselves to be disqualified.” 

Mr. Raskin was the lead impeachment manager for Trump’s January 6  impeachment and has warned that the former president is “setting the stage” for “the Big Lie Round 2.” His comments came after Congressman Hakeem Jeffries in September vowed that “House Democrats are going to do everything necessary to protect our democracy, defend the transfer of power and ensure that the winner of the presidential election is certified on Jan. 6 without drama or consequences.”     

Colorado’s Supreme Court endorsed that position when it ruled that January 6, 2021, amounted to an insurrection and that the 45th president was sufficiently responsible to trigger the disqualification provision. The text of the amendment was adopted with respect to the Confederacy in the aftermath of the Civil War. After Colorado’s ruling, President Biden ventured that there was “no question” that Trump had engaged in an insurrection. 

A unanimous Supreme Court, though, issued a Rocky Mountain reversal in Trump v. Anderson. The justices determined that the Centennial State overstepped its authority when it barred Trump from the ballot because states cannot unilaterally disqualify federal officeholders. A bare majority — five justices — went further and ruled that only Congress can enforce Section Three. That means that not only state courts, but also federal ones, cannot enforce the clause in the absence of a relevant statute. 

Justice Amy Coney Barrett agreed that Colorado had reached too far but ventured that the high court should not have reached “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” The liberal justices went even further and accused their conservative colleagues of deciding “novel constitutional questions to insulate this court” and Trump from further scrutiny. 

One means of disqualification would be conviction under the criminal insurrection statute. That law mandates that “whoever 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, 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.”

Special Counsel Jack Smith, though, did not charge Trump with insurrection. The Department of Justice failed to bring that charge against more than 1,000 January 6 defendants, and no federal court has determined that the riot at the Capitol was an insurrection. Andy McCarthy, writing in National Review, speculates that  if Democrats win control of both congressional chambers, “they could try to ram through legislation that would create a process” to disqualify Trump. 

Crafting such legislation could be challenging, even if one sets aside the task of commanding sufficient majorities to get it to a possible President Harris’s desk. A law that specifically targeted Trump could run afoul of the Constitution’s absolute prohibition on bills of attainder. The Supreme Court defines those as a “device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.”

Another possibility is that Democrats could eschew disqualification in favor of impeachment. Trump, if he wins, has vowed to fire Mr. Smith within “two seconds” of taking the oath of office. The special counsel regulations mandate that Mr. Smith can only be fired by an attorney general and for “good cause” that must be articulated in writing. If Democrats control the House, they could launch impeachment proceedings — for the third time — against Trump.