1

In an article promoted in this tweet a blue-check attorney makes a claim that some Congressmen can be disqualified from holding public office because of A14.3.

He claims that a criminal conviction is not necessary because a civil court can apply the A14.3 penalty.

Has this ever been done? If so, how can a civil disability be applied to an individual without first holding a trial?

The author appears to be a respectable attorney and a prominent public figure. I can't make sense of what he claims though.

0

2 Answers 2

2

Has this ever been done?

It was done in the Reconstruction period in the American South, as explained in a recent Congressional Research Service report on the question. As it explains:

Congress could also enact new legislation to enforce Section 3 in the aftermath of January 6, much like it did in response to the Civil War. Congress initially provided enforcement of Section 3 of the Fourteenth Amendment through enactment of the First Ku Klux Clan Act in 1870. Section 14 of that Act directed the district attorney in each district in which a potentially disqualified person held office to file a writ of quo warranto against the office-holder before a judge. Section 15 of the Act made it a misdemeanor for a person disqualified under the Fourteenth Amendment to hold state or federal office, enforcement of which required a court conviction.

However, after two years, Congress reversed course by providing amnesty from the disqualification under the First Ku Klux Klan Act through enactment of the Amnesty Act in 1872. . . . The Ku Klux Klan Act provisions no longer appear in the U.S. Code, and Congress has not since exercised its authority under Section 5 of the Fourteenth Amendment to enact legislation providing a general procedure for the executive and judicial branches to determine who is subject to the bar on holding office.

Thus, both a civil lawsuit, and a criminal prosecution were available to remove someone from office even if they had not been convicted of an insurrection related crime.

If so, how can a civil disability be applied to an individual without first holding a trial?

Due process would require an opportunity to review the determination in a process which provided a right to present evidence and be represented by an attorney, for example, which is ultimately reviewable by a court.

Under the Ku Klux Klan Act of 1870, this was done by having a district attorney bring a lawsuit to remove someone who was within the Amendment XIV, Section 3 exclusion after they were elected, if necessary. But, that isn't the only conceivable procedural approach.

But, it isn't obvious that you couldn't have a process in which the determination were made first, administratively, and could be contested within a reasonable time after the person affected has notice of it by having the affected person bring a lawsuit challenging the determination.

The process would have to have a timeline that would not prevent a person who successfully challenged the classification from running for and winning public office. So, for example, it couldn't be done shortly before an election is held.

The CRS Report continues by examining some of the other current legislative options:

In contrast to general procedural legislation akin to the Ku Klux Klan Act, there is some debate as to whether Congress can enact a law naming specific individuals subject to disqualification. As is discussed in another Legal Sidebar, some argue that Congress has that right under Section 3, while others counter that such a measure might conflict with the constitutional prohibition on Bills of Attainder. The Supreme Court has described a bill of attainder as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” It is unclear whether legislation to implement Section 3 is subject to the constitutional prohibition on bills of attainder or was instead intended as a constitutional exception to it. Whether disqualification from holding office constitutes punishment for the purposes of the Bill of Attainder Clause is also unclear. Due to these uncertainties, legislation that specifically identifies individuals for disqualification would likely result in litigation.

Article I, § 5 of the Constitution provides the House and Senate with near complete control over their own membership through the distinct constitutional powers of exclusion and expulsion. Either of these powers could be used to enforce a disqualification under the Fourteenth Amendment, at least with respect to an individual’s ability to serve in Congress.

An exclusion occurs when either the House or Senate refuses to seat a Member-elect. That power derives from the Constitution’s charge that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. . .” and may be achieved by the vote of a simple majority.

An expulsion, on the other hand, occurs when either chamber removes one of its current Members. That power derives from the Constitution’s explicit statement that “Each House may . . . with the Concurrence of two thirds, expel a Member.” As reflected in the provision, an expulsion requires the consent of twothirds of the chamber.

The power to expel is much broader in scope than the power to exclude. Both chambers have “almost unbridled discretion” to determine the type of misconduct that warrants expulsion. The Supreme Court has suggested, for example, that Congress’s expulsion power “extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.” Grounds for exclusion, however, are limited to those enumerated in the Constitution. In Powell v. McCormack, the Court established that “the Constitution leaves the [House and Senate] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.” As shown in the Berger experience discussed above, Congress has previously viewed Section 3 of the Fourteenth Amendment as establishing an enumerated constitutional qualification for holding office, and, consequently, a grounds for possible exclusion.

1

The actual article is "Naming the Insurrection" By Marc Elias . So far as I can see, the author nowhere says that disqualification can be imposed without some sort of trial. The author does not really address what the procedures might be for doing this, nor does he discuss what standard of proof would be required. He suggests that:

if the Department fails or refuses to do so, Congress and private litigants will need to step in to vindicate this constitutional disqualification.

He does not say what existing law would authorize "private litigants" to bring such actions, or whether when he says "Congress ... will need to step in" he thinks a new law would be needed.

Under the Due process clauses of the Fifth and Fourteenth Amendments, some sort of trial or hearing would be required. It is not at all clear that any court would be authorized to hear such a case in the absence of a new law, which at present seems unlikely to pass Congress. Possibly a quo warranto suit could be brought, but it is doubtful that any private person would have standing to do so.

But anyone taking this article to imply that people allegedly complicit in insurrection could be removed without any hearing is, in my view, probably mistaken.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.