Litman: Did the Capitol mob have inside help? If so, can a simple majority vote send the insiders packing?
Members of the pro-Trump mob walk the Capitol Halls after forcing their way on Jan. 6 when the House and Senate met to confirm Joe Biden's electoral college win. Did insurgents have help within Congress?
There are suspicions that the insurgent mob that stormed the Capitol on Jan. 6 may have received help from within, possibly from staff or members of Congress. Thirty Democratic officials have asked for an investigation into what looked like tour groups were being led through the halls on Jan. 5, despite the Capitol's closed to the public due to COVID-19.
Perhaps most frighteningly, Rep. James E. Clyburn (DS.C.), the majority whip, told CNN that the intruders flew past his official, well-marked office in Statuary Hall but knocked on the door and in front of his unmarked private rooms that even congressmen often can't find in the Capitol maze.
None of this is evidence; it requires investigation. To this end, Rep. Cori Bush (D-Mo.) Has asked the House Ethics Committee to examine whether members who tried to overthrow Joe Biden's election have violated their oath of office and "should be subject to sanctions including removal from office of the House of Representatives. "
The Bush resolution makes reference to Section 3 of Amendment 14, which provides that no one may hold a variety of federal and federal military, executive and legislative offices, including senators or agents, when taking an oath on the constitution and then went into an uprising against the United States.
It is useful to quote Section 3. The constitution allows the House to expel any representative for pretty much any reason, as long as a majority - two-thirds of the membership - approves. The 14th amendment, on the other hand, can be used to ban members with a much easier simple majority to reach.
In the current House, Democrats would have to persuade nearly 70 Republicans to join them in a vote to expel them, but they would not need GOP help to use Section 3's exile powers.
What are these powers?
The 14th Amendment, which was passed after the Civil War, is the cornerstone of protection against unconstitutional behavior by states. it is, for example, the source of the guarantee of due process and equal legal protection. Section 3 of the amendment has been used sparingly in modern times, but it was a big deal in the 1860s when Congress used it to discourage former rebels from serving in the military and in Congress.
In many recent comments on Section 3, this crucial point is missing: it adds a qualification to the short list of requirements for public office already contained in the constitution. (For example, a house member must be at least 25 years of age and senators and representatives must reside in their districts.) Each house judges under Article I Section 5 whether its members meet the constitutional qualifications by majority vote. Any representative who is disqualified in such a vote will be denied a seat in what is known as an expulsion.
The qualification / exclusion aspect of Section 3 means that it is not possible to remove by simple majority the members of today's Congress regardless of how the Ethics Committee shows up. All members of the 117th Congress were sworn in and sat on January 3rd. It is no longer possible to expel any of them from Congress. they would have to be expelled. That brings the Democrats back to the onerous need for a two-thirds majority vote.
Congress last invoked Section 3 in 1919, in the hyper-patriotic and paranoid days after World War I.
Victor Berger, a founding member of the Socialist Party of America, was elected to the House for a second term from Milwaukee in 1918. Congress refused to seat him on the grounds that his writings and speeches were not faithful to the war effort and that he was not qualified for the Section 3 service. (Berger was charged and later found guilty of violating the Espionage Act. The Supreme Court overturned his conviction.) A special election was held to replace Berger. He ran again and won. The House excluded him again, and since a large part of his two-year term had been used, the seat remained vacant until the next election in 1920. Berger, who was exempt from espionage charges, represented Wisconsin three more times at the house.
Section 3 does not provide a quick and easy method of removal if it is determined that members of Congress were involved in the attack on the Capitol. But in a more protracted way it could be of use to House Democrats versus Republicans of the "coup team".
Based on evidence exposed during the House Ethics Committee investigation, the House could determine by simple majority that some members fall on the wrong side of Section 3. This wouldn't get these representatives packing, but it would allow citizens to be at home to sue states to keep them out of the 2022 vote in case they try to run again - as if they were a minor, for example. If someone won re-election in 2022, the House could again expel them by a simple majority.
If facts show elected officials conspired to attack the Capitol, two-thirds of the House should do the right thing and expel them. However, if the sharply divided House cannot get the necessary majority, then the Democrats can fall back on Section 3. It won't banish the conspirators in 2021, but it could make that term their last.
This story originally appeared in the Los Angeles Times.
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