One of the important things that our committee has to do is lay these facts out for the American people, so that they inform us in terms of our legislative activity going forward.
It is telling that Cheney referred tolegislative activity. Cheney's remarks remind us that Congress has a powerful tool at its disposal to hold former officials accountable, even if they were not involved in the riot. It might be more effective than a criminal prosecution. It is legislation.
The 14th amendment was passed after the Civil War to prevent former Confederates from holding state or federal office and thus disrupting the fragile Reconstruction effort.
The 14th amendment was specifically invoked by a member of the committee.
This idea has come up before. The idea of permanently barring Trump from holding elected office was floated by scholars and legal experts after the attacks. Republicans and Democrats resumed their partisan crouches and major domestic legislative initiatives took center stage as that option seemed to lose some of its appeal.
The committee wants to hold a series of public hearings in the spring, and some members of the GOP seem to be open to some aspects of election reform.
The 14th amendment contains two sections.
No person under the United States or any state who has taken an oath to support the Constitution of the United States will engage in insurrection or rebellion.
Section 5 states that the Congress has the power to enforce the provisions of the article. This is important. It gives Congress the authority to pass legislation banning insurrectionists from holding office, rather than requiring Congress to fall back on other powers, such as its power over interstate commerce. The power of Congress to gather information as part of its legislative efforts is implied in the Constitution, thus opening up for debate the Jan. 6 Committee's subpoena power. Section 5 states that Congress can pass legislation to keep insurrectionists out of public office.
Section 3 of the 14th Amendment deals with implementation, which is a tricky question because of the fact that Congress could potentially pass legislation to ensure that Donald Trump is not the Republican nominee and that he is not close to the Oval Office again.
If a competing candidate were to file a suit against Trump if he were to run for office, the most obvious option would be to pass a law creating a civil cause of action. Congress would establish the criteria for the litigation of Trump's role in the lawsuit. Hypothetically, Congress could allow any registered candidate for state or federal office, with reasonable cause to believe that a competing candidate has engaged in any act that would constitute insurrection or rebellion against the United States, to bring a civil action for injunctive relief.
The Civil Rights Act of 1870, also known as the Enforcement Act or the First Ku Klux Kan Act, made it a crime to run for office if you are ineligible under Section 3. It has never been used. A federal court in North Carolina assessed an indictment against a man who had served as a county constable during the rebellion but was later appointed sheriff. The jury was asked if he engaged in rebellion or insurrection. He was overcome by force, which he could not resist, and he joined the Confederate Army.
If Trump runs for office, the Justice Department could bring a charge against him, but it wouldn't affect his candidacy. It is relatively easy to document the Confederate army. A criminal prosecution wouldn't get the threshold injunctive relief that would stop Trump from pursuing higher office and allow a competing Republican to win support of the party early in the process. It is unlikely that dusting off an arcane post-Civil War criminal remedy would be a priority.
Daniel Hemel, a professor at the University of Chicago Law School, has argued that the process of enactment of an alternative civil remedy to the criminal one that already exists under the Civil Rights Act for purposes of implementing Section 3 could take time to play out.
Hemel points out that any new law would likely be challenged as unconstitutional. Section 9 of the Constitution bars Congress from convicting a person of a crime and imposing a sentence through legislation, which is the role of prosecutors and judges in the executive and judicial branches. The law that criminalizes conduct retroactively is banned by the same constitutional provision. Any legislation that comes out of the Jan. 6 Committee affecting his candidacy for office is a retroactive penalty for bad conduct that unfairly singles him out, and thus unconstitutionally.
The success of the argument is not guaranteed. The 14th Amendment came eight decades after the original Constitution, so it should be construed as being in concert with the ban on bills of attainder and ex post facto laws. Section 3 would fly in the face of the intent of the amendment if it were to be rendered inoperative because of legislation passed to keep Confederates out of office.
The question is what can Congress do to satisfy bill-of-attainder and ex-post-facto concerns but also operate to achieve what Cheney is suggesting: a Donald Trump who remains a free citizen, without the stain of criminality that would sully the office of the president.
Section 3 of the 14th Amendment is not easy to implement because the Senate requires a supermajority 60-member vote to pass legislation, with the exception of budget reconciliation bills, trade. The John Lewis Voting Rights Act of 2021, an attempt to repair the Voting Rights Act of 1965, was recently suggested by Senate Majority Leader Chuck Schumer.
The legal nuances and hurdles of potential legislation are impossible to investigate in the abstract, and court challenges to any legislation would follow. Congress must be careful not to use legislation to keep legitimate candidates off the ballot.
As we mark the one-year anniversary of the inauguration of Donald Trump, it seems that Cheney has hit on a possible sweet spot for accountability and national healing: Congress has enacted rules to keep serious constitutional offenders out. It isn't anyone's birthright to be president. It is something to be earned or lost.
