Congress and the States Are Constitutionally Empowered to Crack Down on Trump and His Seditionists

Congress and the States Are Constitutionally Empowered to Crack Down on Trump and His Seditionists

Congress and the States Are Constitutionally Empowered to Crack Down on Trump and His Seditionists

Just as Speaker Pelosi has excluded members of Congress’s “sedition caucus,” from the January 6 inquiry, so state officials have the right to exclude Trump and his co-conspirators from the ballot.


The Select Committee to Investigate the January 6 Attack on the US Capitol begins its work this week as a panel that has been appropriately constituted by House Speaker Nancy Pelosi.

Pelosi organized the committee in the only way that was possible: by excluding from membership those who aided and abetted the lawless actions of former President Donald Trump. The California Democrat blocked two nominees of House minority leader Kevin McCarthy (R-Calif.) from serving on the panel—Republican Representatives Jim Banks of Indiana and Jim Jordan of Ohio.

“With respect for the integrity of the investigation, with an insistence on the truth and with concern about statements made and actions taken by these Members,” said Pelosi, “I must reject the recommendations of Representatives Banks and Jordan to the Select Committee.”

That was a necessary response to McCarthy’s transparent attempt to disrupt the inquiry by nominating colleagues who carried the banner of the insurrection onto the floor of the House when they voted to overturn the results of the 2020 presidential election.

There is no more middle ground as regards what happened on January 6. Despite having lost overwhelmingly—in the popular vote and the Electoral College count—Trump claimed the 2020 election was “stolen” from him. A substantial number of Republicans in the House and the Senate endorsed his Big Lie. Their dishonesty has always been indefensible. But some members, including Banks and Jordan, took the next and disqualifying step of voting to reject the Electoral College results that elected Biden.

The House never took up Representative Cori Bush’s resolution “Directing the Committee on Ethics to investigate, and issue a report on, whether any and all actions taken by Members of the 117th Congress who sought to overturn the 2020 Presidential election violated their oath of office to uphold the Constitution or the Rules of the House of Representatives, and should face sanction, including removal from the House of Representatives.” But Bush was right to recognize that members of the chamber are constitutionally empowered to proscribe as members “Republican lawmakers who tried to overturn the valid results of the 2020 elections.” And Pelosi was right to assemble a committee that will take seriously the duty of investigating the insurrection.

Pelosi’s decision to exclude Banks and Jordan was, of course, decried by McCarthy and Fox News talking heads as a partisan move. It wasn’t that, however. Pelosi added Republicans Liz Cheney of Wyoming and Adam Kinzinger of Illinois to the commission. She made it clear that she was prepared to place more reasonable Republicans—and perhaps even some less-than-fully-reasonable Republicans—on the committee. But she could not elevate Banks and Jordan, who as relentless Trump apologists could not be trusted to conduct an honest inquiry into their political patron—or themselves.

If the goal of the January 6 committee is to achieve some measure of accountability, the panel had to be able to examine the full scope of wrongdoing before, during, and after the assault on the Capitol. That wasn’t going to happen if members of what has come to be known as “the sedition caucus” were part of the panel.

Pelosi recognizes that there are basic standards that must apply going forward, and she has applied them. This has inspired predictable criticism. But the country is at a critical juncture where choices must be made to exclude bad actors.

For so long as Trump and his seditionists continue to defend the Big Lie, and the insurrection that extended from it, the threat they pose to American democracy cannot be neglected.

That means that tough choices will have to be made in Washington.

It also mean they can and will need to be made in the states.

Late last month, constitutional lawyers with the group Free Speech for People contacted election officials in all 50 states to remind them that Section 3 of the 14th Amendment of the US Constitution bars formally elected officials who engaged in an insurrection from again holding public office.

“Initially enacted in the wake of the Civil War, Section 3 of the 14th Amendment disqualifies from public office any individual who has taken an oath to uphold the US Constitution and then engages in insurrection or rebellion against the United States, or gives aid or comfort to those who have,” notes the group. “President Trump’s incitement of the violent insurrection on January 6th, which claimed the lives of five people and injured more than 140 officers, disqualifies him from holding future public office under this constitutional provision. Senator Ted Cruz, R-Texas, Senator Josh Hawley, R-Missouri, and other elected officials who gave aid or comfort to the insurrectionists would also be disqualified.”

In their letters to secretaries of state across the country, Free Speech for People President John Bonifaz and lawyers Ron Fein, Gillian Cassell-Stiga, and Ben Clements urged officials with responsibility for oversight of elections to “exercise your authority and obligation to exclude Mr. Trump from the ballot.”

Noting that Trump has openly flirted with seeking the presidency again in 2024, the experts in constitutional law explained to officials such as Michigan Secretary of State Jocelyn Benson, “You have the authority and responsibility to determine, as part of the state ballot qualification process, that Mr. Trump is ineligible to appear on a presidential ballot because, ‘having previously taken an oath…to support the Constitution of the United States,’ he then proceeded to ‘engage in insurrection or rebellion against the same.’”

“There is no constitutional requirement that Congress, a court, or anyone else formally adjudicate this question before you may decide his eligibility for the ballot,” they concluded. “Section 3 of the Fourteenth Amendment disqualifies officials who have engaged in insurrection from holding office without requiring any particular decision maker to make that determination, and ‘Constitutional provisions are presumed to be self-executing.’”

Just as Pelosi’s decision to exclude Donald Trump’s co-conspirators from the January 6 committee was entirely reasonable, it is entirely reasonable for secretaries of state and other election officials to explore prospects for barring Trump and others who encouraged the insurrectionists from state ballots.

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