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

“Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty,” said Senator Mitch McConnell on the last day of President Donald Trump’s 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 Trump’s — 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 statute—in other words, whether it is enforceable on its own—there is no doubt that Congress can choose to legislate a specific process for enforcing it.

Last month, the introduction of H.R. 1405 marked Congress’s 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 defendant’s rights by establishing a fair, non-partisan judicial procedure to determine one’s 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. 1405’s 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 Constitution’s 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. 1405’s approach before, and to great effect. In the 1800s, Congress passed a statute requiring federal prosecutors to bring quo warranto actions, cases challenging an official’s 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 Trump’s impeachment. As a government official during the relevant conduct, Trump’s First Amendment rights are narrower than a private citizen’s. Nor does the First Amendment immunize Trump’s 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 Congress’s definitions of terms in Section Three that may not otherwise be clearly defined, and could cause confusion:

  • From which offices does Section Three disqualify someone? Section Three bans a disqualified person from ever serving as a member of Congress, an elector of president or vice president, or holding “any office, civil or military, under the United States, or under any state.” The bill clearly lays out what is an “office” under Section Three, and makes clear that covered officeholders include a broad swath of federal elected officials, appointed individuals, judges, and more, including the president and vice president of the United States. The bill also lays out who holds state office, including state chief executives, state legislators, judges, heads of state agencies, and more.
  • What constitutes an insurrection or rebellion for the purposes of Section Three? Importantly, the bill clearly defines “insurrection and rebellion” as “(A) any violent act, or act supported by a threat of violence, intended to impede any constitutional function of the United States; and (B) any attempt or conspiracy to commit, or incitement of, an act described in subparagraph (A).” A shared definition of insurrection or rebellion is essential as we strive for accountability.

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

  • Would the bill apply to the events of Jan. 6? Yes, the bill makes clear that it applies to those who engaged in insurrection or rebellion prior to the date of enactment of the Act, and who then sought to hold public office.
  • Who would enforce Section Three? The U.S. attorney general would enforce Section Three against individuals.
  • Where would such a case be heard? A district court panel of three judges of the U.S. district court for the District of Columbia would hear such a case, in accordance with 28 U.S.C. § 2284.
  • What would the standard of evidence be? The bill establishes a fair standard to judge whether an individual falls under Section Three. Under a “clear and convincing” standard—less than criminal law’s “beyond a reasonable doubt,” more than civil law’s commonly used “preponderance of the evidence”—those who engage in insurrection or rebellion would face a fair evaluation of their actions. With no prison time at stake, judging an alleged overthrow of government against the high standard required when personal liberty hangs in the balance (“beyond a reasonable doubt”) would be improper, and potentially would put the U.S. at further risk through under-enforcement. On the other hand, it would be a steep penalty for a democracy to expel elected officials from office on only a preponderance of the evidence. H.R. 1405’s proposed standard is the fairest way to pursue accountability for grave constitutional violations without unleashing a new partisan weapon.
  • What would the consequences be for violating Section Three? H.R. 1405 provides for declaratory relief, allowing the three-judge panel to find individuals ineligible for office, to remove them from office, and also to strip them of certain awards, medals, and lifetime government benefits. Any federal buildings named after a person found to have violated Section Three would be renamed.
  • Would Congress lose its power to enforce Section Three once the case went to the judicial branch? Consistent with Section Three, the bill allows Congress to restore individuals’ eligibility for office by a 2/3 majority vote.

Conclusion

As detailed elsewhere, Trump’s 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 question—for 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 mechanism—Section Three of the Fourteenth Amendment—that 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 law—especially when someone thinks they’re above it.

IMAGE: Photo by Tasos Katopodis/Getty Images.

 

About the Author(s)

Jonathan Arone

Impact Associate at Protect Democracy. Incoming J.D. candidate, NYU Law. B.A., University of Chicago. Previously, he was a Litigation Fellow at Stris & Maher LLP.

Sara Chimene-Weiss

Counsel at Protect Democracy. Before joining Protect Democracy, Sara was an Assistant Federal Public Defender in the District of Arizona’s Capital Habeas Unit, where she represented clients facing the death penalty. Previously, she was a fellow at the ACLU’s National Security Project.