Washington Post columnist Jennifer Rubin is calling for the expulsion of Republican members for challenging the electoral votes this week as “sedition.”  From the outset, I opposed this challenge as unfounded.  However, think about this demand (which has been raised by others).  Rubin wants to expel members who joined challenges allowed under a federal law (on the very same grounds that Democrats have made in past elections). Indeed, she declares “Every Republican bears a responsibility for what happened on Wednesday, whether or not they participated in a seditious attempt to overthrow our democracy.” So Republicans who opposed the challenge and denounced the violence should still be punished or blamed?

Moreover, Rubin objects to how these members used “disinformation” to incite violence but proceeds to misrepresent both the law and the record. For example, she singles out figures like Sen. Josh Hawley (R-Mo.)  who stated previously that he did not believe that Vice President Michael Pence had the authority to simply “send back” such electoral votes.

Rubin states these members “knew the objections were baseless. They saw the violent results triggered by disinformation, yet they doubled down on Republicans’ sedition.”  As is often the case in her columns, Rubin seems to reconstruct reality to fit her preferred conclusion. She accuses these members of “inciting” rioters by making the very same challenge brought by Democrats in past elections involving Republican presidents. She does not call for those Democratic members to be expelled.

In January 2005, Boxer joined former Rep. Stephanie Tubbs Jones to challenge George W. Bush’s victory over Democratic challenger John Kerry in the state of Ohio. I was working for CBS in that election and shared concerns over the voting irregularities. At the time, Boxer argued that Republicans had engaged in voter suppression that contributed to Bush’s victory.  The media and Democratic leadership was highly supportive. Indeed, many who are condemning the challenge today heaped praise on Boxer in 2004. There was no hue and cry in the media over anti-democratic measures and refusing to respect the election results. For example, Speaker Nancy Pelosi has called the current challenge an assault on democracy but, in the 2004 election challenge, she praised Boxer’s challenge as “witnessing Democracy at work. This isn’t as some of our Republican colleagues have referred to it, sadly, as frivolous. This debate is fundamental to our democracy.”

Notably, many Democrats like Sen. Chris Van Hollen, D-Md., raised analogous complaints over voting systems and insisted that “as Americans, we should all be troubled by reports of voting problems in many parts of the country.” Sen. Dick Durbin has also denounced the challenge this year but took to the Senate floor to praise Boxer in 2005.  He declared “Some may criticize our colleague from California for bringing us here for this brief debate. I thank her for doing that because it gives members an opportunity once again on a bipartisan basis to look at a challenge that we face not just in the last election in one State but in many States.”

Moreover, it is not “sedition” to use a federal law allowing for such challenges.  Sedition is an attempt to overthrow the rule of law.  Indeed, these members stated that they wanted to highlight the voting irregularities just as Boxer did in 2004. The use of such a law is not an invitation to riot. Moreover, when liberal groups rioted at the Trump inauguration, Rubin did not blame Democratic members refusing to recognize Trump as the legitimate president.

During Trump’s speech, I was tweeting out objections to his statements and defending those he was attacking. I have denounced the speech as reckless and wrong.  However, the effort to weaponize this incident against Republican members is unfair.

What is most chilling is Rubin’s absurd standard proposed for the expulsion of members:

Each chamber can enact a simple rule: “No member shall retain a seat if he or she endeavors to overthrow the results of an election, file frivolous lawsuits seeking to do the same or seek to pressure any election official to change the results of an election.”

Under that standard, any member who filed a lawsuit deemed “frivolous” by Rubin or others could be expelled. Likewise, any challenge to electoral votes under the Electoral Count Act is clearly viewed by Rubin to be sedition . . . unless you are a Democrat. So we have seen a slew of meritless lawsuits over the last four years from Democratic members. The lawsuits were dismissed. Would they also be expelled?  Rubin is calling for a federal law that would allow an entirely subjective standard for the expulsion of members.

Fortunately, the Washington Post cannot rewrite the Constitution for allow for such mob rule.  What Rubin is suggesting would raise serious constitutional problems as a majority party punishes members for taking positions or filing cases that it deems “frivolous” or seditious.

For full disclosure, I clashed with Rubin over her personally attacking me for a theory that I did not agree with in a column that I did not write. I also challenged her on an equally bizarre column where she wrote about my impeachment testimony with a clearly false account of a “concession” pulled out of me by counsel Norm Essen, the very same source that she used in a later column that misrepresented the holding in an appellate case involving Trump. That false account was never corrected the Washington Post.

The reason that columns like this are being printed is that they are largely protected from contradiction in most of the mainstream media. Indeed, in siloed media like the Washington Post, readers are largely protected from opposing views.  Rubin can misrepresent an actual holding and not be subject to a correction.  This proposed expulsion standard is an attack on free speech and representational rights. Yet, it is being applauded by those who want to use this riot to cleanse Congress and cancel opposing viewpoints.