An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots – Just Security

Former President Trumps actions preceding the riot were a disgraceful dereliction of duty, said Senator Mitch McConnell on the last day of President Donald Trumps second impeachment trial. There is no question that President Trump is practically and morally responsible for provoking the events of that day.

McConnell spoke these words while acquitting Trump on procedural grounds for his involvement in the Jan. 6 insurrection. Many Republican senators have similarly acknowledged that Trump bears responsibility for the attack. Yet most refused to convict the former president during his impeachment trial, claiming against the weight of scholarship and precedent to the contrary that they thought the Senate did not have jurisdiction to try a former officeholder. Without a clear procedure for holding Trump and other powerful officials accountable for engaging in the Jan. 6 insurrection, the U.S. government can only prosecute their followers who were physically at the Capitol.

The problem with prosecuting only those physical crimes is the resulting lack of consequences for officials who fully engaged in the insurrection, but who did not literally storm the Capitol. Those present at the invasion may receive prison time, but their powerful government enablers will continue operating just underneath the threshold for arrest. They have come away from this attack confident that their powerful positions are safe as long as their supporters take the fall for them. Without a slate of proportional responses to conduct like Trumps including disqualification from office, rather than criminal penalties alone the U.S. incentivizes the next crop of insurrectionist officials.

Fortunately, a perfectly tailored deterrent already exists in the Constitution: Section Three of the Fourteenth Amendment. Section Three bars from office anyone who engages in insurrection or rebellion after taking an oath to support the U.S. Constitution. In this way, it defines an unequivocal requirement for office, one which governs the behavior of current and former officials alike. While there is debate over whether Section Three requires an enabling statutein other words, whether it is enforceable on its ownthere is no doubt that Congress can choose to legislate a specific process for enforcing it.

Last month, the introduction of H.R. 1405 marked Congresss first effort to enforce Section Three since Reconstruction. Introduced by Representative Steve Cohen (D-TN), the legislation creates a civil procedure for enforcing Section Three of the Fourteenth Amendment in federal court. Passage of the bill would be an appropriate first step in holding accountable the officeholders who engaged in the Jan. 6 insurrection. The bill is an unambiguous belt-and-suspenders measure, clarifying that eligibility for office is still dependent on allegiance to the United States. Responsibly, it preserves the defendants rights by establishing a fair, non-partisan judicial procedure to determine ones continued ability to hold office.

Congress should enact H.R. 1405 not only to effectuate accountability for Jan. 6, but also to lay out clear expectations of consequences for any future insurrectionist activity. H.R. 1405s proposed process is good public policy. It would lend legitimacy to the enforcement process, letting those who engaged in the Jan. 6 insurrection defend themselves in court, while breathing life into the Constitutions bare-minimum mandate: preservation of the republic.

History

Section Three initially disqualified confederates from office after the Civil War, but Congress granted them amnesty shortly afterward. Since then, Section Three historically has been a little-used and little-studied constitutional provision. Its rare enforcement is not because it is dormant or of limited effect Congress intended that it would govern all future insurrectionist conduct but because those who take constitutional oaths seldom engage in insurrection or rebellion.

While rare, Congress has taken H.R. 1405s approach before, and to great effect. In the 1800s, Congress passed a statute requiring federal prosecutors to bring quo warranto actions, cases challenging an officials right to hold office, against former confederates. The resulting enforcement actions resulted in multiple resignations, but no useful judicial decisions, before Congress granted the confederates amnesty and repealed the statute. Accordingly, there is precedent for legislating a cause of action under Section Three.

As explained by Mark A. Graber, because a bill invoking Section Three would merely enforce an existing qualification for office in the Constitution, and would provide for judicial review, it would not violate the Bill of Attainder Clause. It also would not violate the First Amendment, for the same reasons that the First Amendment did not bar Trumps impeachment. As a government official during the relevant conduct, Trumps First Amendment rights are narrower than a private citizens. Nor does the First Amendment immunize Trumps non-speech conduct that violated Section Three such as his inexcusable delay in coming to the assistance of Congress.

The Bill

H.R. 1405 provides useful clarity on a number of essential questions. First, the proposed bill seeks to codify Congresss definitions of terms in Section Three that may not otherwise be clearly defined, and could cause confusion:

The bill also seeks to clarify some basic questions about the mechanics of applying Section Three:

Conclusion

As detailed elsewhere, Trumps behavior on Jan. 6, his widespread efforts to overturn the election, and his attempt to prevent a transition of power caused the Jan. 6 insurrection. His failure to protect members of Congress from attack as they engaged in a constitutionally mandated act similarly amounts to engagement in the insurrection. Section Three of the Fourteenth Amendment instructs that he is unfit for future office.

Even if one substantively disagrees with this conclusion, disagreement underscores the point. Since Jan. 6, people have attempted in various ways to hold those responsible for the insurrection accountable. The U.S. needs a centralized, non-partisan, non-political forum to resolve this questionfor Trump, for others who engaged in the Jan. 6 insurrection, and for those who might learn from our inaction in the future. The Constitution contains a mechanismSection Three of the Fourteenth Amendmentthat was created for situations exactly like this one, and H.R. 1405 sets out fair procedures for effectuating it.

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The best way to move past the worst attack on our seat of government since the 1800s is distinctly American: to give the accused a fair process in front of impartial judges. Though H.R. 1405 would establish a framework, ultimately a panel of federal judges would apply the law to the facts and determine who Section Three disqualifies. This transparent and fair system would simply enforce an existing qualification for office. Regardless of outcome, public hearings help ensure public accountability, and are integral to the rule of lawespecially when someone thinks theyre above it.

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An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security