Here’s Section 3 of the 14th Amendment:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
The notion of ejecting some members from the present Congress on the grounds that they violated Section 3 of the 14th Amendment in the events leading up to the breaching of the Capitol on January 6 of this year is being bandied about.
IMO a lot would hinge on whether they advocated violence. Isn’t that required for a charge of insurrection?
It also says aid or comfort so it doesnt seem like violence is necessary on the part of the officeholder, but IANAL. No way you reach 2/3 anyway.
Steve
Would seem so, however, the House and Senate can expel a member with a 2/3rds vote for any reason they choose. So will they jump in or just continue to rile up the rubes?
Common law rebellion or insurrection requires violence.
There isn’t anything in the 14th amendment section 3 itself that specifies the procedure to expel members for insurrection.
Given section 5 (that Congress has power by legislation to enforce the article); I interpret that Congress can pass a law specifying any procedure it wants (a resolution of one House, concurrent resolution of both Houses, or a judicial finding) or Congress can pass an act specifying specific members to be expelled. Congress has not passed any legislation specifying a procedure.
I don’t think that expulsion for insurrection requires 2/3rds of one House if Congress can pass legislation.
But to the point — this lawfare article reviews the state of the Jan 6 prosecutions (https://www.lawfareblog.com/are-jan-6-plea-deals-too-lenient). It seems like prosecutors have not found a wide-ranging conspiracy (let alone one including members of Congress). On the other hand, the most serious offenders haven’t been tried and quite a few in Congress look convinced something did happen (perhaps privy to non-public info?). We will just have to wait through the process to find out.
The purpose of that 1866 provision was to bar confederates from office. The drafters would have understood who was a confederate primarily by association. The Alabama treasurer who remained in office during the rebellion was a confederate, whether or not he advocated violence or secession. Robert E. Lee, who previously took an oath and then joined the Confederacy, was barred too.
Their understanding of its reach would have been influenced by treason trials during and after the war, as giving aid and comfort to the enemy is treason in Art. III, Section 3 of the Constitution. However, many of these were obtained in confessions to avoid criminal conviction under civilian law, and instead receive p.o.w. treatment and eventual release. The records will likely show a lot of arson and theft, which is confessed to have been performed for the rebel cause.
Also the Second Confiscation Act allowed troops to seize property of disloyal citizens (those aiding and abetting the enemy), and while this was a temporary war measure, those convicted of such disloyalty were probably within the contemplation of the drafters as well, which would include some merchants and farmers supplying enemy troops.
The thorny bit would involve understanding what the drafters thought of political activists like ex-Ohio-Congressman Vallandigham who agitated against the war and the draft, and was detained by the military under the authority of the suspension of writ of habeaus corpus, not for treason. Lincoln’s justification was to ask whether he must shoot the youthful deserter while leaving the wily agitator untouched, whereas it would be a mercy to silence the latter to save the former. That Lincoln had him deported across Confederate lines suggests that the situation was embarrassing and there probably was not strong consensus on whether political speech was in aid and comfort of rebellion.
Generally, I think if someone commits treason, the section probably applies, but as CuriousOnlooker notes there is a lack of procedure in place to make it work. Most of the example I give produced official records, frequently military commissions with hearing transcripts and official findings. Most subjects would understand their situation quite easily, have trouble getting the support of others, and simply self-select out.
Just skimmed In re Griffin (1869) which appears to be the primary precedent in this area, and if that’s the case then it seems like Congress cannot eject someone under this provision on its own vote; they need legislation to authorize a court to rule on whether a given person falls within the prohibition. The decision was issued by Chief Justice Salmon Chase while riding circuit, so some might dispute its precedential value, but he raises a number of issues that seem to direct towards having a law that gives the courts authority to decide the question Dave asks.