Congress should use its constitutional power to prohibit instigators and perpetrators of last week’s violent siege of the Capitol, including President Trump, from holding public office ever again.
On Monday, House leaders introduced an article of impeachment against the president for “inciting violence against the government of the United States,” an obligatory action, given the gravity of the president’s transgression. But this is not the only route for ensuring accountability. The Constitution has another provision that is tailor-made for the unthinkable, traitorous events of Jan. 6 that goes beyond what impeachment can accomplish.
Emerging from the wreckage of the Civil War, Congress was deeply concerned that former leaders of the Confederacy would take over state and federal offices to once again subvert the constitutional order. To prevent that from happening, Congress passed the 14th Amendment, which in Section 3 bars public officials and certain others who have “engaged in insurrection or rebellion” against the Constitution from serving in public office. Although little known today, Section 3 was used in the post-Civil War era to disqualify former rebels from taking office. And, in the wake of perhaps the boldest domestic attack on our nation’s democracy since the Civil War, Section 3 can once again serve as a critical tool to protect our constitutional order.
The 14th Amendment gives Congress the power to enforce Section 3 through legislation. So Congress can immediately pass a law declaring that any person who has ever sworn to defend the Constitution — from Trump to others — and who incited, directed, or participated in the Jan. 6 assault “engaged in insurrection or rebellion” and is therefore constitutionally disqualified from holding office in the future. Congress can also decide how this legislation will be enforced by election officials and the courts, based on all the facts as they come out. The Constitution prohibits Congress from enacting so-called bills of attainder, which single out individuals for guilt. But, in addition to the legislation we suggest, Congress could also pass non-binding sense-of-Congress resolutions that specify whom they intend to disqualify. This would provide a road map for election officials and judges, should any people named in those resolutions seek to run for or hold public office. And Congress can do this by a simple majority — far less of a hurdle than the two-thirds majority in the Senate that removing the president requires.
We believe legislators of conscience should brandish this option not as a substitute for impeachment but as a complement to it. Senators shouldn’t be allowed to escape or indefinitely delay a vote on Trump’s conduct simply by running out the clock on his term. (The Senate majority leader, Mitch McConnell, has suggested no trial will happen before the inauguration.) Republicans should be on notice that whether or not they face a vote on conviction and removal of Trump, they will at the very least be compelled to vote by a Democratic-controlled Congress on barring Trump from ever holding public office again.
This option also has power that the impeachment process lacks. As we learn more in the coming months about who is culpable for the siege, the ranks of those disqualified from office will likely swell. The legislation we envision would allow future courts and decision makers to apply the law after the investigations are complete. Eventually, we should have a 9/11 Commission-style report on what led to these events; the facts marshalled there can be deployed under the legislation we propose. We don’t suggest this course of action lightly. It would not have applied to a peaceful protest on the Capitol grounds — even one made to make lawmakers feel uncomfortable as they attended to their ministerial duties. It still would not have applied if the Jan. 6 protests had culminated only in street violence, as several other pro-Trump gatherings in recent months did. The First Amendment protects unruly dissent.
But this was a unique event in American history: an obstruction by force of a constitutional process, at the very seat of our government. Parading the Confederate battle flag through the halls of Congress, the insurrectionists interrupted the certification of the election results for several hours and cemented this presidential transition as one marked by deadly violence. Washington’s mayor and congressional leaders concluded that it was necessary to call in the National Guard to quell the insurrection. Had a single additional layer of security failed, many elected officials, including the vice president and the speaker of the House — both of whom are constitutional officers — might have been killed. All to the end of preventing the winner of the 2020 election from taking power.
Make no mistake: This was an insurrection. The 14th Amendment disqualifies its instigators from public office, whether the president is convicted in a Senate trial or not.
Gupta is the founder of an appellate litigation law firm in Washington; Beutler is the editor in chief of Crooked Media. NYT©2020
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