Destroying a Democracy to Save it: Democrats Call for the Disqualification of Dozens of Republican Members

Below is my column in The Hill on the continued calls to disqualify Republican members of Congress to prevent them from running for reelection. What is maddening is that Democratic groups and commentators are seeking to remove as many as 120 Republicans from the ballots in the name of democracy. It is like burning books in the name of literacy. Yet, on this anniversary of the January 6th riot, members of Congress and Democratic groups want to block voters from reelecting their preferred representatives. Like villages in Vietnam, it appears that some members and activists believe that you have to destroy democracy to save it from itself.

Here is the column:

This year, the Biden administration joined many in the United States in criticizing the mass disqualification of 583 candidates in Iran by the Guardian Council. The Iranian elections (like elections in other countries like China and Venezuela) are democratic only in the most artificial sense: You can freely vote from a pre-selected list of candidates.

Electoral disqualification systems are generally anathema to democratic values, but some in the United States are now toying with the idea for the 2022 or 2024 elections. While more modest than the Iranian model, the Democratic calls for disqualification are just as dangerous. What is most maddening is that this anti-democratic effort is cloaked in democratic doublespeak.

This week, Democratic lawyer Marc Elias predicted that 2022 would bring a renewed interest in disqualifying Republican members from office based on an obscure Civil War-era provision. Elias — the former Hilary Clinton campaign general counsel — is a well-known figure in Washington who has been prominently featured in the ongoing investigation of Special Counsel John Durham. Elias has founded a self-described “pro-democracy” group that challenges Republican voting laws and pledges to “shape our elections and democratic institutions for years to come.”

In the age of rage, nothing says democracy like preventing people from running for office.

Elias and others are suggesting that — rather than defeat Republicans at the polls — Democrats in Congress could disqualify the Republicans for supporting or encouraging the Jan. 6 “insurrection.” Last year, Democratic members called for the disqualification of dozens of Republicans. One, Rep. Bill Pascrell (D-N.J.) demanded the disqualification of the 120 House Republicans — including House Minority Leader Kevin McCarthy(R-Calif.) — for simply signing a “Friend of the Court brief” (or amicus brief) in support of an election challenge from Texas.

These members and activists have latched upon the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — which was written after the 39th Congress convened in December 1865 and many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.

Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.” So, members drafted a provision that declared that “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.”

By declaring the Jan. 6th riot an “insurrection,” some Democratic members of Congress and liberal activists hope to bar incumbent Republicans from running. Even support for court filings is now being declared an act of rebellion. House Speaker Nancy Pelosi (D-Calif.) helped fuel this movement — before Jan. 6 even occurred — by declaring that the Republicans supporting election challenges were “subverting the Constitution by their reckless and fruitless assault on our democracy which threatens to seriously erode public trust in our most sacred democratic institutions, and to set back our progress on the urgent challenges ahead.”

Jan. 6 was a national tragedy. I publicly condemned President Trump’s speech that day while it was being given — and I denounced the riot as a “constitutional desecration.” However, it has not been treated legally as an insurrection. Those charged for their role in the attack that day are largely facing trespass and other less serious charges — rather than insurrection or sedition. That’s because this was a riot that was allowed to get out of control by grossly negligent preparations by Capitol Police and congressional officials. While the FBI launched a massive national investigation, it did not find evidence of an insurrection.

With an ominous mid-term election approaching, much of the effort among Democrats on the Hill and in the media has been to keep the enmity alive from Jan. 6. In what seemed almost a hopeful plea, the New York Times recently declared “Every Day is Now Jan. 6.” It made this tragedy sound like the political equivalent of a year-round Christmas store: Every day should involve a renewed gift of reminiscence and rage.

The saddest aspect of this politicization of the Jan. 6 riot is that many of us wanted a full, transparent, and apolitical investigation. House Republicans rejected that idea, but there remain many questions to be answered — which has not happened. Instead, we have an effort to encode the notion of an actual insurrection through mantra-like repetition.

The Constitution fortunately demands more than proof by repetition. In this case, it requires an actual rebellion. The clause Democrats are citing was created in reference to a real Civil War in which over 750,000 people died in combat. The confederacy formed a government, an army, a currency, and carried out diplomatic missions.

Conversely, Jan. 6 was a protest that became a riot.

That is not meant to diminish the legitimate outrage over the day. It was reprehensible — but only a “rebellion” in the most rhetorical sense.

More importantly, even if you adopt a dangerously broad definition of “insurrection” or “rebellion,” members of Congress who supported challenging the electoral votes (as Democrats have done in prior years) were exercising constitutionally protected speech.

Moreover, the Democrats cannot simply use their razor-thin majority to disqualify opponents willy-nilly. Punishments like expulsions take two-thirds votes, and any disqualifications can be challenged in the court.

Indeed, not long after ratification in 1869, Chief Justice Salmon P. Chase ruled in a circuit opinion that the clause was not self-executing. He suggested that allowing Congress to simply bar political opponents from office would be a form of punishment without due process and would likely violate the prohibition on bills of attainder.

As Democrats push to federalize elections and negate the laws in a couple dozen states, figures like Elias are now suggesting that Republicans could also be listed as “rebels” and barred from the ballot. Congress would then control not just how states conduct their elections but even who can appear on such ballots.

The renewed calls for disqualifications may be simply reckless rhetoric timed for the anniversary of the riot. After all, every day would not be Jan. 6 without the requisite rage. However, it is reason — not rage — that we need right now.

A recent poll showed that one in three Americans believes that violence against the government can be justified. It often seems like some want to trigger an actual rebellion by disenfranchising parts of our population. The fact is that there are people who traffic and profit in rage, and we are all the poorer for it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

154 thoughts on “Destroying a Democracy to Save it: Democrats Call for the Disqualification of Dozens of Republican Members”

  1. Any attempt to disqualify politicians who have been popularly elected on such partisan grounds would really amount to subverting democracy.

  2. We should consider insurrections in a serious manner. Let’s consider an attempt by the head of the CIA, the man in charge of the FBI and the Democratic presidential candidate conspiring to unseat an elected President. The so called insurrectionist of 1/6 are a pimple on a nat’s rear end in comparison to James Comey, John Brennan and Hillary Clinton when it comes to attempts to take over our government. The real insurrection began on January 6, 2017. The Democrats have continued the insurrection from then until now. People with no power participated in a riot. People with the power of the highest seats in our government participated in an insurrection and continue to do so to this very day.

    1. Good comment Think. You reminded me of what came to mind yesterday with all the 1/6 hyperventilating. While that commission says they will have a preliminary report by August, don’t forget that John Durham is still moving like a Kilauea lava flow.

      So, while Democrats are trying to use 1 riot to disqualify political opponents from running for office, Durham is slowly rolling up those involved in the Russiagate coup attempt.

  3. I thought of that provision several months before January 6. I wondered if I could find any members of Congress or state legislatures that had acted in support of CHAZ (or CHAD). I daresay that the Capital Hill Autonomous Zone qualifies as an insurrection far more than the Capitol Hill riots.

    However, it seemed to me that the politicians making statements in support of the Autonomous Zone were all of the local level, so the 14th Amendment provision would not apply.

  4. Trump supporters should remember that the “constitutional democratic republic” system also preserves gun rights, property rights and search/seizure rights – even if the majority of voters want to take those rights away! Madison and the Framers never wanted “pure democracy”, they created legal restraints on Congress, presidents, governors, legislatures and all governing officials – if laws and practices violated constitutional rights.

    Those that supported “stopping the [faux] steal” weakened that constitutional system, thereby weakening gun rights, property rights and search/seizure rights. It weakens your ability to go to court to overturn unconstitutional-laws to protect your gun rights, property rights and search/seizure rights. So if they ever actually do come for your guns, Trump helped them do it.

    Although Trump is one of the nation’s most famous business expert, he’s not too sharp on America’s model of government. Trump swore an Oath of Office to uphold the U.S. Constitution to the best of his ability and then promised GOD to keep that promise. We now know he didn’t do that.

    If January 6 was not either an insurrection or rebellion, it was at minimum DISLOYAL to the American Oath of Office (Title 5 US Code 3331 and Article VI of the U.S. Constitution). It was a constitutionally-subversive act disloyal to America. Trump and every member of Congress swore a supreme and superseding loyalty oath to defend and stop it. Maybe Trump is good at business but government is not his strong suit!

    1. AZ,

      Of course you see nothing wrong with the Biden Administration I guess.

      This is not about Trump….or Biden….they are just two Men who somehow wound up in the Oval Office.

      They are just two Men….they are in charge of one Branch of the Government….not all three.

      This is not a Democrat or Republican thing…..it is far larger than that.

      This is about the heart of this Nation….the People….who loan power to Men such as Biden and Trump and to Congress.

      This is about the Constitution and the Rule of Law….which is the very heart and soul of the American system of government.

      The Trespassers who entered the Capital had no intent to take over the government as they came un-armed.

      Every photo and video confirms the vast majority were peaceful….when you see the video of them quietly walking between the roped walkway used to control Tourists…..snapping their photos of the Statues…..you can only see one thing…..simple protest at the worst.

      If Trump had committed a crime of any kind….the evidence would have been plain and easy to come by…..his own staff would have been the first witnesses to that.

      We saw Riots by the Left beginning BEFORE Trump was even Inaugurated and a full year of Riot, Arson, Assault on Police Officers, destruction of private property, and the injuring and killing of citizens…..yet the Left and particularly the media either ignored it, falsely reported on it, or out and out encouraged it…..as did Democrat Politicians to include the current Vice President.

      Yet you, the media, and the Democrats fret over Trump’s speech or lack of action on January 6th.

      Why do you not fret over the fact that Nancy Pelosi and the other Officials charged with Security of the Capital are refusing to provide their Call Records, Texts, Emails, and testimony to the January 6th Investigation?

      You see Trump….and only Trump….but not the Capital Architect, the Sargent at Arms, the Speaker of the House, the Chief of the Capital Police…..when you wish to lay blame…..why is that?

      Trump as President and the Department of Defense offered the use of the National Guard in advance of January 6th but each time that offer was refused……why is that?

      Why…..you just do not want to know the truth.

      The January 6th Investigation is a farce….as was two Impeachments both of which failed.

      Unless and until the Left in Congress actually live up to THEIR own Oaths….don’t try to tell “Trump Supporters” how the Cow ate the Cabbage.

      1. “This is not a Democrat or Republican thing…..it is far larger than that.”

        Ralph, excellent post. This type of comment is what this blog should be all about.

        I like Trump, but I don’t care who anyone else likes. I care about policies that are carried out or attempt to be carried out. That is what I judge the President on, not his name, promises, or tweets. I prefer Trump policies under the persona of a statesman, but I don’t see any that have the backbone to stand up under fire and fight back though a few might be able to fill Trump’s shoes. The question is, do they have the stomach to face the far left and their Democrat allies, Republicans that are self-serving, the FBI, the media, Hollywood or Foreign governments that have ineffective leadership and like bashing America? That is a tall order. No President should have to face such abuse.

  5. Jonathan, and Gov. Pritzker in your home state would bar anybody from public office for not agreeing to the facts as he sees them about 1/6. He wrote, “A year ago today we witnessed a vicious attack on our Capitol and democracy. We can’t sweep the events of Jan. 6 under the rug, and we can’t allow insurrectionists to rewrite history. The facts of that day cannot be up for debate. And those who deny them cannot hold office.” He wouldn’t even require any conduct to bar somebody from office, just a pure thought offense. See https://twitter.com/JBPritzker/status/1479097692290748422

    1. My take on it, Mark, is that this disqualification nonsense is a fundraising gimmick. Schiff, Swalwell, and other notorious diaper stains know that there are Democrats who would refuse to go along if a vote were forced. Even Liz Cheney would likely balk at this, and that would be too embarrassing. Follow the money.

  6. Gosh, this January 6th political theater worked so well in Virginia and New Jersey. Reminds me of the joke about the definition of insanity.

    1. If the Democrats had balls they would have the Ethics Committees expel the 147 Republican members of Congress they accuse of trying to overthrow the government. Then they could pass the legislation that has been stalled. I wonder how long it would take to get the seats filled. Excuse me, I need to make a phone call.

      1. It might take a long time, because states might just secede. Actually, it makes sense to secede – from that monumental screwup in DC that calls itself the Federal Government. That 20-foot fence around the Capitol building might serve a useful purpose – just re-brand it as “St Elizabeth’s Hospital – Capitol Branch”, provide attendants, a liquor supply for the Speaker, and a sign advertising visiting hours on Sundays, from 2 to 4 in the afternoon, when visitors could listen to the rantings of the inmates.

  7. The Jan 6 debacle was a disgrace led by a throng of morbidly obese men who could scarcely climb a wall (pitiful video footage), huffed and puffed walking down the halls with quite a few using a cane, taking photos and smiling. Not exactly a menacing crowd. Had they been in their 20s, wearing black bloc, throwing Molotov cocktails, Kamala Harris and Joyless Reid would have joined.

    the Russian Interference Hoax was probably even more damaging to our country, and weaponizing the FBI and Intelligence committees to try to freeze Trump or get him to resign was even more dangerous than the 2020 election dispute. Americans know the Big Lie was Hillary’s well funded Russian stolen election “hoax”

    God Bless America

    1. Let me guess, your idea of a great president is Putin? Putin cheated fair and square to give Trump the Presidency. But that darn Senate c**k blocked him from giving his patron what he wanted in return, dropping the sanctions. Joe ripped Trump a new one today, I am interested to see if Mr Orange can still walk tomorrow. Now is the time to strike at Russia and Putin while the iron is hot. Cut off all access to every Russian oligarch’s access to US dollars, including Putin. Tell them they can have it back when the behave themselves. What say you, comrade?

    1. Sad content, but I have a math question… “a trillion pounds — a billion billion pounds”… So, a trillion in the UK = (1,000,000,000)^2 = 1,000,000,000,000,000,000? Maybe a UK billion is the same as a US million (1,000,000)? I guess that math works actually.If so, then I could be a billionaire in England! So, has RS gone Brit then? Good place for him and his supporters.

  8. “Destroying a Democracy to Save it: Democrats Call for the Disqualification of Dozens of Republican Members”

    – Professor Turley
    ______________

    “You can’t handle the truth.”

    – Colonel Jessup
    _____________

    Jan. 6 was nothing by comparison.

    DESTROYING THE REPUBLIC AND ITS CONSTITUTION AND COMMENCING THE “RECONSTRUCTION OF A SOCIAL WORLD”

    Abraham Lincoln destroyed America, the Republic of the Founders, to “Save the Union,” the union, not of the U.S. Constitution, but of the Communist Manifesto.

    President Trump should have Saved the Nation and the Constitution of the American Founders.

    The REPUBLIC of Ben Franklin et al. could not be kept and persisted for a mere 71 years, until Abraham Lincoln, elected by 39.8% like Hitler, vacated the Constitution, seized power, declared martial law, denied the constitutional right of secession, commenced an unconstitutional war of aggression, not common defence, with a sovereign foreign nation, suspended habeas corpus, denied and destroyed the free press, imprisoned political opponents, confiscated private property, nullified and failed to enforce contemporary immigration law, the Naturalization Act of 1802, and forcibly and improperly ratified amendments under the duress of brutal post-war military occupation, initiating the implementation of the principles of communism in America – Central Planning, Control of the Means of Production, Redistribution of Wealth and Social Engineering. Lincoln’s efforts were praised and Lincoln was congratulated by Karl Marx for “…the reconstruction of a social world…,” understanding that:

    “The goal of Socialism is Communism.”

    – Vladimir Ilyich Lenin
    _________________

    LINCOLN WAS THE COMMUNIST WHO COMMANDEERED AMERICA

    “These capitalists generally act harmoniously and in concert, to fleece the people.”

    – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
    __________________________________________________________

    “Everyone now is more or less a Socialist.”

    – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848
    __________________________________________________________________________________

    “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

    – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864
    ________________________________________________________________

    “Reading Karl Marx with Abraham Lincoln” (excerpted)
    Utopian socialists, German communists, and other republicans

    ON DECEMBER 3, 1861, a former one-term congressman, who had spent most of the past dozen years studying dissident economic theories, mounting challenges to the existing political order and proposing ever more radical responses to the American crisis, delivered his first State of the Union address as the sixteenth president of the United States.

    Since assuming office eight months earlier, this new president had struggled, without success, first to restore the severed bonds of the Union and then to avert a wrenching civil war. Now, eleven southern slave states were in open and violent rebellion against the government he led.

    Amid all the turbulence of a burgeoning Civil War, Abraham Lincoln wanted it to be known that he was unsettled by the rising assumption “that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor. This assumed, it is next considered whether it is best that capital shall hire laborers, and thus induce them to work by their own consent, or buy them and drive them to it without their consent. Having proceeded so far, it is naturally concluded that all laborers are either hired laborers or what we call slaves. And further, it is assumed that whoever is once a hired laborer is fixed in that condition for life.”

    That false construct could not be allowed to take hold in a free country, argued the president. It must be understood, he concluded: “Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”

    “Let the workingman think of this and go to the polls and vote for Abraham Lincoln, who is the true democratic candidate, and not the representative of the English Aristocracy, or their form of government, to be rid of which so many have left their native shores, and which form the leaders of the Rebellion are in favor of, in evidence of which we have the fact that in many of the Southern States no people can hold office but a property holder…” went one leaflet’s class-based appeal, which was critical to building the majority that would allow Lincoln to carry New York and retain the presidency with a decisive national landslide.

    From afar, KARL MARX (who corresponded with Dana and other American compatriots during and after the war) cheered on the campaign, writing to FRIEDRICH ENGELS in September 1864 with considerable enthusiasm: “Should Lincoln succeed this time—as is highly probable—it will be on a far more radical platform and in completely changed circumstances.”

    Marx and Engels had been busy in the fall of 1864 with the work of organizing the International Workingmen’s Association—the “First International” of the communist movement and its allies on the left. At the meeting on November 19 of the International’s general council in London, Marx presented a letter of congratulation to Lincoln, which the council endorsed. It read:

    Sir: We congratulate the American people upon your re-election by a large majority. If resistance to the Slave Power was the reserved watchword of your first election, the triumphant war cry of your re-election is Death to Slavery.

    From the commencement of the titanic American strife the workingmen of Europe felt instinctively that the star-spangled banner carried the destiny of their class. The contest for the territories which opened the dire epopee, was it not to decide whether the virgin soil of immense tracts should be wedded to the labor of the emigrant or prostituted by the tramp of the slave driver?

    – ISR, International Socialist Review

    https://isreview.org/issue/79/reading-karl-marx-abraham-lincoln/index.html

  9. An insurrection need not be successful to qualify as such. Nor need it print money. What, after all, was the purpose of January 6 if not to stop the transfer of power? If Capitol Police had not resisted the insurrectionists (for that is what they were), what do you suppose would have happened?

    1. VERY LITTLE.

      We saw what happened when the man with horns walked through the chamber. Almost nothing.

      1. A Black Capitol Police officer shot and killed an unarmed white female veteran of the US Air Force, Ms Ashli Babbitt, who served two tours in Afghanistan and Iraq. She died, he lied, now the Leftwing Brownshirts are coming after us, our families and our children.

        “US science teacher arrested for vaccinating 17-year-old student”
        https://www.bbc.com/news/world-us-canada-59876583

    2. What, after all, was the purpose of January 6 if not to stop the transfer of power

      To petition the government for redress of grievances.
      It’s right their in the founding documents.

    3. Funny how none of the PLANTED rioters not any of the ARMED BLM members who participated and even helped to foment a riot, were ever questioned or detained.

      Also funny (not really funny) is the fact that the illegal committee refuses to release any of the tape they are using To support their little show trials.

      Pelosi was asked to ensure the capitol police were out in force prior to the LEGAL DEMONSTRATION. Oddly she refused.

      Now why do you suppose that she refused a legitimate request (from President Trump) to do her job? I guess that’s just a mystery – to you.

      1. also not funny that the captal police beat a middle aged woman to death before dragging her body out like a piece of meat to get the murder out of the way. The murder tunnel videos are leaking.

    4. bah. Another pathetic attempt to over throw the Constitution by a left wind looney. Sorry, this isn’t Venezuela, dem.

    5. Sorry David but the Jan 6 RIOT was actually a FED scam, just like the Gov Whitman “kidnapping” case. More FEDS than citizens! As we go forward, more & more real evidence is coming to light, with the now serious investigations into the voter fraud coup that INSTALLED Joe Dimentia to run cover for the 3rd 0-Bum-A term. AZ Maricopa county with 87,000 nonexistent “voters”(not able to be found in ANY data base anywhere), same scenario in Tucson area with 143 votes in a town with only 80 registered voters, over 125 “voters” showing a border patrol office as there “residence” address. Nevada had 200,000 more votes than VOTERS, & my friend’s dead father voted 9 months AFTER he died(for BiteMe, I’m sure), Wisconsin has called for ALL voting machines to be investigated, Georgia now has a whistleblower who was paid $10 per vote to the tune of $45,000 to “harvest ballots”. There’s video evidence & phone pings of 243 different “Vote harvesters” & yet that’s only 15% because the videos for 85% of the “drop” boxes(GR8 NAME for them) has been illegally destroyed! Pennsylvania is as, or more, corrupt than Illinois & Michigan has it’s own investigation going on. Watch when the state legislatures begin recalling their electors votes! Dumb-0-crap scum can only hide for so long but the TRUTH eventually comes to bear!

    6. Facts matter. The fact is that after an extensive FBI investigation, not a single person was charged with insurrection…nor conspiracy to commit insurrection…nor sedition. So the legal system has determined that there were no insurrectionists. Without any insurrectionists, there is no insurrection.

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