Democrats cite rarely used part of 14th Amendment in new impeachment article
In search of historical guidelines and legal tools to respond to last week's forcible siege of the U.S. Capitol, congressmen and jurists are examining a little-known section of a reconstruction-era constitutional amendment.
Section 3 of the 14th Amendment theoretically gives Congress the power to exclude officials who have expressly sworn an oath of allegiance to the US Constitution from exercising their duties if they have "committed insurrection or rebellion against the constitution" in breach of their oath . However, the provision has seldom been used or tested, and so scientists are unsure how exactly and for what purpose Congress today might exercise authority under this provision.
House Speaker Nancy Pelosi, D-Calif., Officially asked her colleagues on Sunday for their views on this part of the Constitution.
MP Alexandria Ocasio-Cortez told ABC News chief anchor George Stephanopoulos that Congress is examining many possible legal and political avenues to respond to the attack and hold the president, if not other elected officials, accountable.
PHOTO: Rep. Alexandria Ocasio-Cortez on "This week with George Stephanopoulos", January 10, 2021. (ABC News)
"This is neither the 25th Amendment, nor the impeachment, or, as you know, the investigation of our other options through the 14th Amendment," she said on ABC Sunday "This Week." "I don't think it's a matter of deciding or debating which of these paths we should take. I think we should pursue any of the above approaches."
Then, on Monday, the Democrats explicitly pointed this out in their reformulated impeachment proceedings against President Donald Trump.
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After the end of the civil war, Congress began to wonder who should be able to retain power and hold public office while the country comes back together.
"You are waging a war over slavery and losing it - 700,000 to 800,000 dead," Columbia University professor Stephanie McCurry said of the southern states. "They lose in April 1865, but by December 1865 send them back to Congress - people like Alexander Stephens, the former Vice President of the Confederation. It's incredible that they thought they could do that. They are utterly unrepentant, and it is their turn used to wielding power. "
Disappointed at the time, members of Congress refused to seat men like Stephens and the debate spurred the drafting of Section 3 of the Fourteenth Amendment, which was ratified three years later in 1868.
"It says nothing about the Confederates, it is about anyone who does something like that. In my opinion, it would apply to President Trump and prevent him from holding office now or in the future," said the Pulitzer Prize winner excellent civil war historian Eric Foner told ABC News Monday.
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Foner emphasized the part of Section 3 that relates to those political and military leaders who had previously taken an oath of office. He argued that the provision was not intended to exclude the average Confederate soldier from public office, but specifically those who had previously vowed to protect the U.S. Constitution.
"It was punishment for rebellion, but in a sense it was post-oath rebellion. It was perjury for which they punished them," he said. "(Trump) took an oath to support the Constitution and now he's helped the insurrection, so the people who wrote the 14th Amendment tried to avoid it, even if only a few times American history was used, it's there. "
According to Foner, the law was enforced in the south for a number of years, and there have been examples of people being forced to leave public office on the orders of US Congress and local officials because they were previously Confederates. But in 1872, Congress passed a major amnesty bill, and Section 3 of the 14th Amendment was essentially postponed.
President Donald Trump speaks during an anti-electoral college rally on Wednesday, January 6, 2021 in Washington. (Evan Vucci / AP)
Trump urged his supporters to "show strength" Wednesday morning before many in the crowd marched on Capitol Hill and broke through the halls of Congress. Most of the discussion around the 14th Amendment since last week has centered on whether Congress could use its powers under that provision to specifically remove President Trump or forbid him to seek office again.
Some have wondered if the same part of the Constitution could be applied in this case to punish also seated members of Congress for their potential role in inciting violence by perpetuating misinformation related to the elections.
Freshman Rep. Cori Bush made her legislative debut Monday with a resolution aiming to expel some of her colleagues who voted against confirming the 2020 election results. Its legislation, co-sponsored by 47 members of the Democratic House, specifically names Rep. Mo Brooks, Senator Josh Hawley and Senator Ted Cruz and accuses them of "taking unprecedented steps to defy the will of the American people."
"Section 3 of the 14th Amendment to the Constitution states that no one can serve in the House of Representatives who has acted unfaithful or seditious against the United States. There is no place in the People's House for these heinous acts. I firmly believe these members violate against their sworn oath of office in support and defense of the United States Constitution. They must be held accountable, "Bush said in a statement.
The House of Representatives and the Senate each have their own rules for reprimanding and expelling members, and it is unclear whether Congress could circumvent these rules by passing law under parts of the 14th Amendment instead.
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However, Michael Klarman, a constitutional attorney at Harvard Law School, emailed ABC News that he believed that the application of Section 3 of the 14th Amendment to Disqualify a Member Who Contested the Legitimacy of the Election based on the events of the past week, "a real route."
He added that "insurrection" and "rebellion" are "legal terms with an established meaning ... I just don't think Wednesday's event would qualify."
"While (Sens.) Hawley and Cruz are despicable, and I've signed the petition calling for their banning, it seems like a great challenge to me to call what they (Wednesday) did 'insurrection or rebellion' to describe, "wrote Klarman.
PHOTO: House Speaker Nancy Pelosi speaks to reporters at the Capitol in Washington, DC on January 8, 2021. (Oliver Contreras / Sipa USA via AP)
Stephen Vladeck, a constitutional law expert at the University of Texas, appeared to agree during an interview with ABC subsidiary WFAA.
"The idea is that this provision should ipso facto even exclude the president from continuing in office," said Vladeck. "I don't think anyone would ever have thought that this would be used to oust a sitting president who had served most of his entire term in office."
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After the Civil War, Americans had a clearer example of what was considered an insurrection than many do today. Most likely, in order for Congress to remove or expel anyone for these reasons, members would most likely need to first investigate the violent events of the past week and make a formal decision or explanation as to whether the mob's actions were deliberate, organized, or were organized if they represent a coordinated attack on the federal government.
"I think it would require Congress to pass a law ... saying that what happened on January 6th before and around it was a constitutional uprising and therefore (Trump) will be disqualified. You would have to make some statements about why is this an insurrection? What does insurrection mean in 2021? "Kate Shaw, legal analyst at ABC News and professor of Cardozo law, said Monday.
"Even if you, as a scholar, say that this does not match my idea of an insurrection, it in no way means that Congress has not reached a different conclusion ... you are entitled to make your own decision," Shaw continued, and said that the courts would then probably weigh up.
Shaw added that Rep. Jaime Raskin, one of the authors of the new impeachment article, is also a former professor of constitutional law.
ABC News' Alisa Wiersema contributed to this report.
Democrats cite an infrequently used portion of the 14th Amendment in a new impeachment article originally published on abcnews.go.com
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