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Gray Cox of Bar Harbor teaches philosophy, peace studies and language learning at College of the Atlantic.
When a mob successfully breaks into our nation’s Capitol building with the aim of overturning a presidential election and overthrowing our democratic process of government, we have to consider this a seditious insurrection. When they organize ahead on social media and bring weapons and proceed to intimidate, assault and kill, we have to consider this domestic terrorism.
The seriousness of the crime here can perhaps be best gauged by considering how it would be viewed if the organized and armed members of the mob had been members of ISIS who snuck in to the protest. The seriousness of the effects of crime need to be assessed not only in terms of the short-term damage done to the building and the people in it, but to the reputation and standing of our congressional institutions here in our country and abroad in the world. Further, because the mostly unmasked mob created havoc in which social distancing often became impossible it created a threat that a significant number of congressional leaders — many of whom are over 65 — and their staffs have been infected with COVID and may become ill or even die as a result.
These are extremely serious national security threats and the FBI and Department of Justice will need to investigate and prosecute everyone who participated in them or helped plan, organize or support them. Of the penalties such people must face, one especially significant one is laid out not just in law, but in the Constitution itself, in the third section of the 14th Amendment. It says:
“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.”
This amendment was passed after the Civil War to insure that government officials who had betrayed their oath to defend the Constitution once by engaging in insurrection would not get a chance to do so a second time. With the current insurrection that culminated in the domestic terrorism on Jan. 6, one key question concerning our current government officials is, which office holders “engaged in insurrection or rebellion against” the Constitution of the United States or gave “aid or comfort to the enemies thereof.”
The 14th Amendment does not specify the process for determining who, as a matter of fact, should be judged to fall under its application. However, Congress clearly has the power to make such a determination either directly through deliberation over an individual case or indirectly through the appointment of some commission whose procedures and decisions it would authorize and approve.
In the case of the current insurrection, at a minimum, it would seem appropriate for Congress to directly deliberate over the case of the highest government official who clearly did, in fact, aid and support the insurrectionists, Donald J. Trump. The video of Trump rallying the mob and encouraging them to go to the Capitol and fight to prevent the Congress from approving the votes of electors is not ambiguous.
Further, if he had wanted to stop the insurrection at any time he could have called out the National Guard. Or he could have tweeted or gone on TV and asked the mob to stop. The loyalty of his followers is strong and clear and if he had asked them to stop at any point they would have done so. Instead, he urged them on and told them he loved them.
In doing so, he violated his oath of office. Congress should review these facts for whatever brief time their own due processes require and then vote to specify that Donald J. Trump has, in accordance with the 14th Amendment, forfeited his right to ever again hold office in the government of the United States of America. There may be accomplishments and characteristics of President Trump that Americans will want to continue to celebrate, but, in the words of Sen. Lindsey Graham, “enough is enough.”
Once he leaves office, there are a wide variety of charges and possible penalties he may face. Meanwhile, there may not be time to impeach and convict the president before Jan. 20, and there may not be the willingness in his vice president and cabinet to invoke the 25th Amendment to remove him from office. But the members of the Congress of the United States of America whose work and lives were threatened on Jan. 6, should ensure that he never holds office again. Their own oath of office requires them to do that.