GUEST COMMENTARY - Before I even get into the guts of this argument, just ask yourself:
if Democratic Members of Congress had engaged in a seditious conspiracy to overthrow our government to put or keep a Democratic president in power against both the popular vote and the Electoral College, and Republicans controlled Congress right now, what would those Republicans be doing?
The 14th Amendment to the Constitution clearly says that if an elected official "shall have engaged in insurrection or rebellion" against the United States and the laws of the United states, "or given aid or comfort to the enemies thereof," that elected official may not "hold any office, civil or military" including those who are "a member of Congress."
It's time to enforce the Constitution, and a judge in New Mexico just kicked off the process. Democrats need to jump on this with the vigor of Trump crashing a Miss Teen USA dressing room.
The 14th Amendment to the Constitution clearly says that if an elected official "shall have engaged in insurrection or rebellion" against the United States and the laws of the United states, "or given aid or comfort to the enemies thereof," that elected official may not "hold any office, civil or military" including those who are "a member of Congress," a member of "any State legislature" or "an executive or judicial office of any state."
It was ratified on July 9, 1868, after the Civil War, so courts could prevent traitors from the Confederacy from serving in any political office, and expel those who may have made it through over the years. With a two-thirds vote of both the House and the Senate, the 14th amendment says, such former insurrectionists could be re-admitted, but that's a pretty high bar.
The last time the Amendment was used was in May of 1869, when a Black man named Caesar Griffin was arrested and convicted of a crime and then appealed the conviction because, he claimed, the judge in the case—a former Confederate slave-holder and the Speaker of the Virginia House when that state seceded from the Union—was illegally a judge because, as a legislator, he had given "aid and comfort" to the Confederate "insurrection" against the United States.
The courts agreed and the Judge, Hugh W. Sheffey, was forced to resign his seat in the winter of 1869 when he refused to pledge allegiance to the US; he went back to practicing law in Staunton, Virginia until his death. The accused criminal, Caesar Griffin, was re-prosecuted by a different non-traitor judge for a slightly different charge (to avoid double jeopardy) and ended up back in prison.
This week a court in New Mexico revived the issue, kicking Couy Griffin out of his seat as an Otero County commissioner based on that provision of the 14th Amendment.
While he tried to defend himself by claiming that he'd not engaged in any violence while in the Capitol on January 6th and that he had a First Amendment "free speech" right to hold political office on the county commission, District Court Judge Francis Mathew was having none of it.
By simply being there on January 6th and offering encouragement to his more violent colleagues in the insurrection, the court determined, he more than met the criteria of "giving aid and comfort" to the people directly engaged in violent insurrection.
Five members of the current Congress have so far been charged under this provision of the 14th Amendment: Madison Cawthorn, Marjorie Taylor Greene, Paul Gosar, Andy Biggs, and Jim Banks.
The charges against Cawthorn were thrown out because, just four years after the 14th Amendment was ratified, President Ulysses Grant determined it wasn't effective and was, in fact, aiding Klan recruiting: Congress granted a general amnesty to all but the most senior members of the Confederacy with the Amnesty Act of 1872.
That law decreed that:
"[A]ll political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses , officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States."
Cawthorn argued, and U.S. District Judge Richard E. Myers II—a Trump-appointed Federalist Society judge—agreed, that the Amnesty Act not only pardoned all the traitorous Confederates of that time but pre-pardoned all future traitors to the United States, even though the law says no such thing.
As Ron Fein, legal director of Free Speech For People (who participated in the case), said of the Trump-appointed judge's decision:
"According to this court ruling, the 1872 amnesty law, by a trick of wording that—although no one noticed it at the time, or in the 150 years since—completely undermined Congress's careful decision to write the insurrectionist disqualification clause to apply to future insurrections. This is patently absurd."
Marjorie Taylor Green's case went to Fulton County Superior Court Chief Judge Christopher S. Brasher, who recently partially retired after being accused of verbally attacking a Black defendant before his court by "physically pointing at her, angrily raising his voice, and turning visibly red."
Judge Brasher found that "there is no evidence to show that Rep. Greene participated in the invasion itself," and refused to allow the parties arguing she should be kept off the ballot to engage in discovery, which, they argued, could have turned up both her alleged text messages to insurrection organizers and her open statements to the public in support of the insurrection.
"[P]re-hearing discovery is improper," Judge Brasher ruled, while blocking access to evidence of her possible crimes and freeing Greene to run for re-election.
The challenge to Congressman Jim Banks, a major Trump supporter, was heard before the Indiana Elections Commission, which ruled 4-0 that he could remain on the ballot. Banks' lawyer argued that "Congressman Banks has publicly commented that he did not support that conduct, nor did he engage in it, and he has also called for the prosecution of unlawful conduct that occurred that day."
That argument—essentially that he didn't participate in the insurrection and later disapproved of it—was apparently enough for the commissioners. After being confirmed on the ballot, Banks, who voted against certifying President Biden's election, released a belligerent statement, saying:
"Many Democrats in Washington hope to weaponize the 14th amendment to disenfranchise President Trump's 74 million voters. I hope they watched today's unanimous decision."
The case against Biggs and Gosar was shot down by an Arizona judge who argued that even though the Constitution outlaws such behavior through the 14th Amendment, Congress never passed implementing legislation. Because of this failure, he said, this was an issue for Congress to resolve rather than the courts.
"Therefore, given the current state of the law and in accordance with the United States Constitution," wrote Maricopa County Superior Court Judge Christopher Coury, "plaintiffs have no private right of action to assert claims under the disqualification clause. … The text of the Constitution is mandatory," Coury wrote. "It sets forth the single arbiter of the qualifications of members of Congress; that single arbiter is Congress."
So, right now, the score is 5-1, although all the cases of members of Congress who were allowed to continue to run for office were, arguably, tainted by politics or brought in weak venues like Banks' election commission or Coury's "not my responsibility" courtroom.
But what about members of the House and Senate who, we're finding, were actually in direct communication with the armed insurrectionists or Trump's henchmen?
Multiple Senators and House members were texting and carrying on phone calls with Trump and Giuliani on and immediately before the attack, as the January 6th Select Committee has found. Some were even talking with Trump or his people during the peak of the January 6th attack.
Others, like Lauren Bobert, stand accused of tweeting the location (or absence thereof) of Nancy Pelosi and other members of Congress as the Republican mob attacked with the clear intent to kill Pelosi and Pence.
The case of Couy Griffin was the easiest to prosecute under the 14th Amendment because he was caught in the act on January 6th and later convicted of it in court; the others were less directly involved or, if they were, apparently Trump-sympathetic judges refused to allow evidence to be entered in court.
But as more and more evidence becomes public of Republican members of the House and Senate being directly or closely involved in this first attack on Washington, DC since the War of 1812, the pressure to deprive them of their ability to stay in Congress will grow.
As mentioned in the opening paragraph of this article, if it had been Hillary Clinton who'd worked to seize the White House in 2016, you can bet that blocking her collaborators in Congress would be the least of the efforts Republicans would have undertaken. She'd more likely be facing the fate of Julius and Ethel Rosenberg, along with any Congressional co-conspirators.
President Biden has correctly identified these people as "semi-fascists" and called them out to their faces. Now Democrats in Congress—particularly as more information comes out through the January 6th Committee and the efforts of the FBI—need to take the gloves off and challenge the right of insurrectionists and those giving them "aid and comfort" to continue to serve in Congress.
This article was first published on The Hartmann Report and featured in Common Dreams.
(Thom Hartmann is a talk-show host and the author of "The Hidden History of Monopolies: How Big Business Destroyed the American Dream" (2020); "The Hidden History of the Supreme Court and the Betrayal of America" (2019); and more than 25 other books in print.)