Constitution clearly demands removal of insurrectionists from office

Friday, Sept. 9, 2022 | 2 a.m.

This week, a judge in New Mexico declared that the deadly Jan. 6 riot at the US Capitol was an “insurrection.” He also ruled that because it was an insurrection, “Cowboys for Trump” founder Couy Griffin is ineligible for his seat on the Otero County Commission and must be immediately removed from office for his role in the deadly attack. Griffin was convicted this year on a misdemeanor charge of breaching restricted Capitol grounds.

The word “insurrection” has been used by politicians and news organizations throughout the 20 months since the attack on the U.S. Capitol. But the declaration by Judge Francis Mathew marks a new stage in holding the insurrectionists accountable for their deadly attempt to overthrow democracy.

Mathew’s ruling is based on a very straightforward, word-for-word reading of the third clause of the 14th Amendment to the U.S. Constitution. It reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

In simple terms, if you previously swore an oath to defend the Constitution and then engaged in, or otherwise provided material support for, an insurrection, you cannot hold public office ever again.

The 14th Amendment was passed in the aftermath of the Civil War — an appropriate place to turn to for legal authority given the attack on the Capitol and recent polling from the Economist and YouGov showing nearly a third of Americans believe a civil war is likely in the next 10 years.

In the aftermath of the first Civil War, Congress faced a difficult decision. Most of the Confederate leaders, both in the ranks of military and civilian government, were previously part of the U.S. military or held elected office.

After denouncing their allegiance to the Union, they became active participants and supporters of the violent multiyear insurrection and civil war against the United States. Many of them held leadership positions, either in the military or within the Confederate government.

Now that the war was over, those same men were once again seeking political office. The result was that by 1867, just two years after the war’s end, former Confederate leaders held numerous positions in state and local government, had successfully passed multiple laws to undermine the rights and liberties of formerly enslaved people and were strategizing ways to create as much autonomy from the federal government as possible. A second civil war was brewing, but this time, they would take down the Union from within.

Congress responded with the 14th Amendment in 1868, which guaranteed the now well-known concepts of due process of law, equal protection under the law and the right of all persons born or naturalized in the United States to pursue life, liberty and property.

It also barred anyone who participates in a rebellion against the United States from holding public office, ever again.

But does it make sense to apply an amendment designed for a post-war era to today?

We believe the answer can only be “yes.”

Participants in the Jan. 6 insurrection attempted to violently overthrow the democratic election of the United States, deny duly elected public officials the opportunity to take their rightful seats, and insert an authoritarian leader who lacked democratic support. To succeed, they were willing to storm the Capitol, destroy public property, send a slate of fake electors to cast fraudulent votes, assault police officers and other government officials, and threaten the vice president of the United States with a public lynching for his refusal to cooperate with their plan.

This was more than just a protest, it was a murderous mob that trampled one of their own supporters to death, hung a noose on the front lawn of the Capitol and ultimately killed three police officers.

These same people cannot be allowed to hold public office or be ensured with the public trust.

Let’s be clear: The insurrection clause of the 14th Amendment was intended to bar those who actively participated in or actively supported violent rebellion from holding public office. It was not intended to bar those who are doing nothing more than exercising their First Amendment rights to free speech and assembly.

That means that while we might question the judgment of Nevada Senate candidate Adam Laxalt for promoting the big lie and giving jobs to insurrectionists, we cannot argue he is legally ineligible to hold office.

Should his communications director, Courtney Holland, decide to seek office herself, however, our opinion might be different. Holland was not only scheduled to speak at the Stop the Steal rally, but she was also photographed being escorted onto restricted Capitol grounds by members of the violent white nationalist group and co-organizers of the insurrection, the Oath Keepers.

Dozens of other candidates and elected officials from across the country are also facing uncertain eligibility following Mathew’s ruling.

Repubilicans JR Majewski of Ohio and Derrick Van Orden of Wisconsin are both expected to win seats in Congress this November, but their roles in the Jan. 6 insurrection remain unclear. Both are military veterans who have denied any criminal wrongdoing, but entering restricted areas of the Capitol grounds is a crime in itself. If they ignored their oath to the Constitution that day, they should not be allowed to take office.

Meanwhile, Pennsylvania gubernatorial candidate and state Sen. Doug Mastriano, who was filmed marching through police barricades Jan. 6, is suing the House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol. Despite claiming he has nothing to hide, Mastriano is trying to use a legal technicality to get out of speaking to the committee on the record.

Other known insurrectionists are on the ballot in state and local elections, with 10 already assuming office last year. And even more are implicated in the larger conspiracy to overturn the election results, including former police officer and Nevada GOP Chair Michael McDonald and his slate of fake electors.

The 14th Amendment was passed because Confederate leaders tried to use elective office to accomplish what their insurrection, the Civil War, failed to do. Today, 150 years later, Capitol insurrectionists are running for office across the country for the exact same reasons: to finish the job their violent revolution failed to accomplish.

Under the plain, simple, straightforward language of the Constitution, many of these individuals should be permanently excluded from holding office. This isn’t partisan politics. It isn’t judicial activism, legal gymnastics, or alternative “interpretations.” The Constitution is clear.

If it can be shown that these individuals “engaged in insurrection or rebellion against the same, or (have) given aid or comfort to the enemies thereof,” they must be removed from office or declared ineligible.