Let the Voters Decide 

Winston Apple - February 15, 2021

One of the things that has made America great is our long tradition of the peaceful transfer of power based on the results of presidential elections.  That tradition has been shattered by Donald John Trump.  In words and deeds before and after the election on November 3, 2020 and the attack on our Capitol and members of Congress on January 6, 2021, he orchestrated an effort to remain in power despite losing that election.  A large number of Republicans in Congress and state governments gave him "aid or comfort" in that effort. 

If we want to make America great again, the members of Congress who did not give “aid or comfort” to Donald Trump in his attack on our democratic traditions must respond to his failure to “preserve, protect, and defend” our Constitution by strictly enforcing Section 3 of the 14th Amendment, which states 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.  But Congress may by a vote of two-thirds of each House, remove such disability."  

Section 5 of the 14th Amendment says that, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  The future of democracy in America will shine a bit brighter at this critical time if the members of Congress who were not part of the attack on our Constitution pass “appropriate legislation” to enforce the 14th Amendment. 

Congresswoman Cori Bush took the first step in that direction on January 11th when she introduced a resolution that would require the House Committee on Ethics to investigate and report on whether actions taken by Members of the 117th Congress seeking to overturn the 2020 Presidential election violated their oath of office; and stating that Members who did violate their oath of office should face sanction, including removal from the House of Representatives.  

That resolution currently has 54 cosponsors.  Every member of Congress who has not already violated their oath of office in some way in the process of giving aid and comfort to Donald Trump's attack on our Constitution should join this effort.  In a nearly ironic twist to this sordid episode of insurrection, the failure to join this effort to enforce the 14th Amendment would, in itself, amount to a failure to "support and defend" the Constitution.

With regard to prohibiting Donald Trump from holding public office, Congress could simply pass legislation doing that.  There would be no need for another trial or lengthy hearings, we’ve seen more than enough evidence of his guilt.  Such legislation could be passed by a simple majority in both houses of Congress.   

Mitch McConnell and some of the other Republican senators who voted to acquit Donald Trump acknowledged his guilt but claimed they voted to acquit because the fact that he was no longer in office meant that impeachment was not the proper basis for action and the Senate lacked jurisdiction.  If they were being sincere, they should be willing to vote to bar him from holding public office.  That would result in broader bipartisan support for such an action.   

With regard to expelling the members of Congress who gave Donald Trump aid or comfort in his attack on our Constitution, the process of enforcing the 14th Amendment is complicated by a conflict with Article I, Section 5 of the Constitution, which says that, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”   

Section 3 of the 14th Amendment states categorically that "No person shall be a senator or representative in Congress" if they have given aid or comfort to an enemy of the Constitution and there is no mention of “the Concurrence of two-thirds”.  The question of whether members could be expelled pursuant to the 14th Amendment by a simple majority or whether a two-thirds vote would be required would need to be resolved.  

With so many Republican members who could be considered guilty of giving Trump aid or comfort in one way or another, if Congress were to proceed with expelling members, those who stand accused should not be allowed to vote on the question of their own expulsion.  Especially in the House of Representatives, that would leave the question largely up to Democrats.   

Although majority rule is the very essence of democracy, a mostly party line vote to expel numerous members of the other political party, would be deeply and unavoidably divisive.  There is a way to enforce the 14th Amendment that would work around that problem.  

Pursuant to Sections 3 and 5 of the 14th Amendment to our Constitution, Congress could (and should) pass legislation providing for a national referendum to allow voters to decide whether Donald Trump should be prohibited from holding public office in the future, which members of Congress should be expelled and barred from holding public office, and which members of state legislatures, or executive or judicial officers of any state should be removed from office and prohibited from holding public office. 

The Ethics Committees in both the Senate and the House of Representatives should compile a list of the members of Congress and elected official in various states who gave "aid and comfort" to Donald Trump in his attack on our Constitution.   

In making that determination, the Ethics Committees should first decide which of the following actions amounts to giving aid or comfort:  

  • Voting to reject certified Electoral College votes without providing any reasonable cause for rejecting those votes; 
  • Voting against impeaching Donald Trump for inciting the insurrection (if a member of the House of Representatives) or to acquit Donald Trump of the charge of inciting the insurrection of January 6, 2021 (if a senator);
  • Making public statements before, on, or after January 6, 2021, in support of rejecting certified Electoral votes or calling the validity of the 2020 presidential election into question without any evidence to support such claims; 
  • Filing or joining lawsuits that were filed without any supporting evidence of merit; 
  • Improperly or illegally lobbying legislators, executive officers, or election officials in one or more states to overturn the results of the presidential election of 2020.  

If such a referendum is conducted, the following question should be at the top of the ballot: 

"Did Donald J. Trump, having previously taken an oath as an officer of the United States to support the Constitution of the United States, subsequently engage in insurrection or rebellion against the Constitution of the United States, or give aid or comfort to individuals who engaged in insurrection or rebellion against the Constitution of the United States?" 

If a majority of voters respond in the affirmative, Donald J. Trump should be prohibited from holding public office in the future unless Congress "by a vote of two-thirds of each House, remove(s) such disability.” 

Ballots for the referendum in the states, congressional districts, and legislative districts where any elected officials have been found by the Ethics Committees to have violated the provisions of the 14th Amendment should ask the same question of each official so accused:

"Did _____, having previously taken an oath to support and defend the Constitution of the United States, subsequently give aid or comfort to Donald John Trump is his attack on the Constitution of the United States?"   

Below that question on each such ballot, there should be a list of the candidates who have filed petitions as candidates to replace any elected officials who may be removed from office by the voters of a state or district.  Any voter who votes to remove an official should be able to cast ranked choice votes for one or more of the candidates listed as possible replacements.  If a majority of the voters in a state or district vote “no”  with regard to removing an elected official, the votes for replacement candidates would be disregarded.  If a majority of the voters in vote “yes” and an elected official is to be replaced, those votes for a replacement would be tabulated and the winner would immediately assume office.  

Any elected officials removed from office should also be prohibited from holding any public office in the future unless “Congress...by a vote of two-thirds of each House, remove(s) such disability.” 

Given the partisan nature of the attack on our Constitution, it will be difficult to strictly enforce the 14th Amendment without further dividing our already deeply and bitterly divided nation.  Any effort to hold elected officials who violated their oath of office accountable will strike many Republicans as extremely unfair.  Any effort at enforcement will be labeled a partisan attack.  Democrats will be accused of being afraid of running against Donald Trump and his Republican co-conspirators in 2022 and 2024.  There are a couple of factors that mitigate and counter those accusations.  

There were some members of the mob that attacked the Capitol who made references to 1776 and the American Revolution.  It should be noted that the men who signed the Declaration of Independence knew that, if the Revolution failed, they were signing their own death warrants.  No such consequence is contemplated or proposed in enforcing the 14th Amendment.  There is no malice and a good deal of charity in the rather mild rebuke of expelling them from office and prohibiting them from holding public office again. 

Furthermore, thanks to gerrymandering, Republican candidates would be likely to fill most of the vacancies that would result from elected officials being removed from office.  (Unless, of course, voters decide to punish the party further in those elections.) 

Despite the grave and unprecedented nature of the attack on the Capitol, the continued fealty of many Republicans to Donald Trump and the apparent desire of many Democrats to simply move on from the events of January 6th, makes it unlikely that the course of action recommended here will be pursued. 

Should that prove to be the case, concerned citizens will need to do what Congress fails to do.  Voters will need to vote any insurrectionists who were not expelled out of office at the next opportunity, even if that opportunity is nearly six years away in the case of some Republican senators.   

Those of us who believe in democracy must remember January 6th and remember the Capitol.