In the NY Times today, I argue w/ @brianbeutler that a Civil War amendment to the Constitution--barring those who've "engaged in insurrection" from holding office--authorizes a broader response, one that goes beyond impeachment and beyond Trump alone.
Congress should use its power under the 14th Amendment to pass a law blocking the instigators and perpetrators of last week’s siege of the Capitol--including but not limited to Trump--from holding office ever again.

This would be a complement, not a substitute, for impeachment.
Even during the Civil War, the traitors never breached our Capitol. On Wednesday, they did. They paraded the Confederate battle flag through its halls, halted the electoral vote count, and upended the peaceful transfer of power with bloodshed.…
As we respond, we should draw from the lessons of preceding generations--including those who drafted the Constitution's Fourteenth Amendment during what Reconstruction historian Eric Foner calls America's "Second Founding."…
The Framers of the 14th Amendment arrived at a consensus that we sadly find ourselves needing to enforce again: Those who swear an oath to defend our Constitution but then betray that sacred oath by participating in an insurrection cannot be permitted to hold public office again.
Section 3 of the 14th Amendment disqualifies anyone who, having sworn to defend the Constitution, has "engaged in insurrection or rebellion against [it]." And Section 5 gives Congress the "power to enforce" Section 3 "by appropriate legislation." Congress should invoke both.
But what counts as "insurrection or rebellion"? The answers can be found in historical legal understandings in English common law, the 14th Amendment's drafting history, and cases before and after the Civil War--including treason trials, like that of Jefferson Davis.
Some might believe that Section 3 only covers former Civil War Confederates. That's mistaken. The drafting history shows a switch to broader language. The drafters knew insurrections could happen again. And, years later, Congress recognized that "its provisions are for all time."
Dating back to 17th-century England, the law held that mobs that violently attacked and obstructed the legislature could be prosecuted for “treason by levying war” against the state—a historical origin of the Fourteenth Amendment’s reference to “insurrection or rebellion.”
When a mob obstructs and impedes the enforcement of the law and civil authority, and specifically, when it (a) stops a legislature from performing its constitutional functions and (b) causes violence requiring the civil authorities to call in the military, that's an insurrection.
"[R]aising a body of men to obtain, by intimidation or violence, the repeal of a law, or to oppose and prevent by force and terror, the execution of a law, is an act of levying war." US v Mitchell, 2 U.S. 348 (C.C.D. Pa. 1795)
Under the Militia Act of 1795, the Insurrection Act's predecessor, it's when "the laws of the United States shall be opposed or the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings."
The Insurrection Act likewise applies where "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings."
By now, you get the idea. What happened last week was a textbook insurrection. The mob attacked Congress to stop the constitutional process of counting of votes. For a time, the mob succeeded. The National Guard had to be called in to quell the violence and secure the Capitol.
What about "engaging in" insurrection? Professor Feldman speculates that incitement might not be enough. But courts, scholars, & prosecutors have long recognized that one who incites an insurrection is an insurgent—even if they don't personally take up arms or carry out violence.
Does an insurrection require a presidential proclamation? No. It’s true that the Militia & Insurrection Acts contemplate a proclamation ordering "the insurgents to disperse.” But that's not what *defines* an insurrection--that's a procedural precondition for federal intervention.
That Section 3’s “insurrection or rebellion” language can’t be reasonably read to require a proclamation is also clear from historical treason cases, in which people are found guilty of engaging in the equivalent of insurrection without any proclamation to that effect.
And, here, it would be stranger than strange to deny that there was an insurrection last Wednesday because the President didn't issue a proclamation of insurrection: Shamefully, it was President Trump himself who was our Inciter-in-Chief.
Some might also raise objections based on the prohibitions on bills of attainder & ex-post-facto laws. But legislation needn’t identify Trump (or anyone) by name. It can declare that January 6 was an insurrection & create a process and standards to be applied based on the facts.
Legislation along these lines has benefits that impeachment can't provide. It may extend later to members of Congress, current & former law enforcement or military, and others who are discovered on investigation to have actively incited, directed, or carried out the insurrection.
Congress can also simultaneously pass non-binding sense-of-Congress resolutions to further guide courts, election administrators, and others in carrying out its legislation. Courts will likely defer to Congress's findings, while observing due process.
Why legislation? Isn't the Constitution self-enforcing? Litigation under Section 3 may be inevitable. But legislation via Section 5 can create a cause of action, standards of conduct, procedures, and instructions on weighing evidence--putting enforcement on a far surer footing.
Why is this a complement to impeachment? Impeachment demands a full Senate trial now. But a law can be applied over time, based on all facts developed, sweeping in others who incited or directed the mob: members of Congress, current or former military or law enforcement.
Caveat emptor: These are just a few preliminary thoughts on a novel set of legal and prudential issues. Getting this all right will require further research, analysis, and deliberation.
In the days just before Trump's inauguration, I was surprised to find myself focused on the constitutional meaning of "emoluments." In his final days, I'm shocked to find myself contemplating the constitutional meaning of "insurrection or rebellion."

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More from @deepakguptalaw

6 Jan
There's understandably been a lot of talk today about the 25th Amendment and the Impeachment Clause. We should also focus on Section 3 of the 14th Amendment, which disqualifies those who engage in insurrection against the Constitution of the United States from holding office.
The Impeachment Clause also authorizes Congress to order "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." And there should be a high bar to concluding that an official has engaged in "insurrection." But it seems worth discussion.
This law review article provides a helpful framework for understanding Section 3:…

And this person--an already-seated WV state legislator who took part in today's failed insurrection at the Capitol--seems like a potential test case:…
Read 4 tweets
26 Nov 20
Anyone who wants to understand the newly composed SCOTUS needs to take a hard and careful look at the full set of opinions released at midnight last night. They are very revealing—probably more so than they would be if the Justices had the benefit of more time for deliberation.
1) The restrictions were lifted. Why does the Court feel a need to issue what the Chief characteristically calls "[a]n order telling the Governor not to do what he’s not doing"?
2) Justice Thomas assigns to Justice Barrett. She write but doesn't sign her first opinion. Why?
3) Justice Gorsuch writes solo to offer a lengthy attack on the Chief's short solo opinion in a previous case. Why?
4) Justice Gorsuch equates a quick trip to the store (masked, distanced) with a morning spent singing alongside others indoors. Why?
5) Many, many more questions.
Read 8 tweets
7 Oct 20
A quick note on the scary seconds just before my SCOTUS argument this morning. We had tested all the technology carefully, working with the Court’s excellent, helpful staff. But just seconds before I was about to start talking, the line went completely dead. Silence!
This happened while @smmarotta was wrapping up, which was my cue that the Chief Justice was about to call my name to immediately start. At first, we thought that Sean’s line cut out. A few seconds later, we realized that the high-tech phone system we were borrowing had shut off!
(We had switched from our own conference room to a friend’s law firm because the Court detected some bandwidth issues on our VOIP lines and the other firm’s connection was ideal. The Court staff thought it was the best audio quality of any advocate this term.)
Read 8 tweets
26 Sep 19
Office of Legal Counsel's memo argued that the whistleblower complaint didn't have to be released to Congress b/c it didn't allege abuse of intelligence processes. That's demonstrably false: It alleges a pattern of WH using NSC computer systems to hide politically damaging facts.
Don't believe me? See for yourself. Here's the Office of Legal memo. I've excerpted its bottom-line legal conclusion.:…
And here's one of several paragraphs in the whistleblower complaint concerning abuse of national security computer systems--"administration, or operation of an intelligence activity under the authority of the Director of National Intelligence"--to hide the President's conduct.
Read 7 tweets
13 Sep 19
BREAKING: We just won our appeal in our Emoluments Clause case against Donald Trump, on behalf of Trump's restaurant and hotel competitors. The Second Circuit panel unanimously reverses the district court's dismissal, across the board. Opinion coming shortly.
Read 4 tweets

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