Congress Can Expel Members Who Supported Riot

If members of the House and Senate are upset that some of their colleagues supported and encouraged the violent mob that stormed the Capitol last week, they can do something about it.

The Constitution gives Congress clear authority to punish its members and to expel them. The House and Senate have used the expulsion power only rarely, however, partly because disgraced members tend to resign. And Democrats seem more focused on impeaching President Donald Trump for a second time for inciting the insurrection. The president cast doubt on the election for weeks and then directed rioters to march on the Capitol, telling them if they didn’t “fight like hell,” they would lose their country.

Rep. Cori Bush (D-Mo.) introduced a resolution in the House with 47 co-sponsors directing the Ethics Committee to commence a disciplinary review of all 139 Republicans who voted to overturn the election results to see if they should be censured or expelled.

Several lawmakers have called for Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas) to resign for their role in last week’s riot. Hawley was the first senator to say he would object to the certification of November’s election, which Trump falsely claimed had been stolen from him. He and Cruz led a faction of Senate Republicans who helped Trump turn what is normally a routine certification vote into a day of rage.

“It’s time to STAND UP,” Hawley tweeted earlier in the week. He also said on Twitter he was glad several other Republicans were “joining the fight” by agreeing to vote against the election result. “This is about taking a stand where you can take a stand,” he said on Fox News. Outside the Capitol on Wednesday, he raised a fist in solidarity with the crowd of angry Trump supporters.

The crowd became a mob that ransacked both the House and Senate, interrupting lawmakers as they certified the election result. Even after the riot, Hawley dishonestly said in a Senate floor speech that the election was tainted with fraud. Some Senate Republicans were shaken by the violence and changed their minds about opposing the certification; Hawley, Cruz and four others did not.

Sen. Sherrod Brown (D-Ohio) called for Cruz’s and Hawley’s resignation over the weekend, saying they “betrayed their oaths of office and abetted a violent insurrection on our democracy.”

“If they do not resign, the Senate must expel them,” Brown said.

And Sen. Sheldon Whitehouse (D-R.I.) called for the Ethics Committee to “consider the expulsion” of Cruz and Hawley and for them to be removed from any committees charged with investigating the Capitol insurrection. Hawley and Cruz sit on the Senate Judiciary Committee, which will be investigating.

Democratic Sens. Chris Coons (Del.), Patty Murray (Wash.), Ron Wyden (Ore.) and Jeff Merkley (Ore.) called for Cruz and Hawley to resign, but stopped short of calling for their expulsion.

Asked why the senators should be allowed to keep their jobs after having trumpeted baseless election fraud claims and encouraged the rioters, spokespeople for Cruz and Hawley did not respond.

Expulsion is the most severe disciplinary tool available for each chamber of Congress to punish their respective members. The sole mention of expulsion in the U.S. Constitution states that each chamber may “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” That leaves fairly wide latitude to each chamber to punish members deemed to have acted inappropriately, but requires a very high bar of a two-thirds vote for expulsion.

This high bar was added at the Constitutional Convention to prevent the abuse of the expulsion power.

“[T]he right of expulsion was too important to be exercised by a bare majority,” James Madison stated.

For this reason, expulsion has been an exceedingly rare event. There have been just 20 congressional expulsions ― five members of the House and 15 senators ― since the Constitution’s adoption in 1789. And all but three were expelled for sympathy with the Confederacy. 

While often ignored in recent debates over expulsion related to corruption concerns, these expulsions based on Confederate sympathy have a newfound relevance as the senators and representatives in question supported, cheered or openly encouraged the insurrection at the Capitol, during which one man actually carried a huge Confederate flag into the Senate building. 

There were two batches of expulsions of lawmakers from Congress during the Civil War. The first batch involved the expulsion of 10 senators from states that seceded to create the Confederate States of America who had left their seats upon their respective states’ secession. These senators were expelled because they “engaged in said conspiracy for the destruction of the Union and Government, or, with full knowledge of such conspiracy, have failed to advise the Government of its progress or aid in its suppression,” according to the expulsion resolution passed by the Senate.

The Senate then expelled Kentucky Sen. John C. Breckinridge, the former vice president and 1860 Southern Democratic presidential candidate who lost to Republican Abraham Lincoln, for taking up “arms against the Government he had sworn to support” after fleeing into Confederate territory. Missouri Sens. Waldo Johnson and Trusten Polk were expelled next, for, “sympathy with and participation in the rebellion,” after they failed to take their seats. And then Indiana Sen. Jesse Bright, a Democrat, was expelled after addressing a letter to “His Excellency President Jefferson Davis” to introduce him to an arms dealer. All but Bright wound up taking up arms against the United States.

All of these cases, save for Bright’s, are notably different from the present circumstances in that they involved senators who had already left their seats to join an ongoing insurrection. However, these expulsions occurred prior to the passage of the 14th amendment that was adopted in 1868. Section 3 of the 14th amendment states that no one “shall be a Senator or Representative in Congress,” among all other offices, who “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies” of the United States.

Rep. Bush called for the 139 Republicans who voted to throw out election results to be expelled under Section 3 of the 14th amendment.

It is not clear whether Section 3 of the 14th amendment would apply to the spoken words of lawmakers to a group not clearly identified as “enemies” of the United States. Speaker Nancy Pelosi (D-Calif.) has asked House Democratic lawmakers for input on the legal basis of the invocation of this section. The articles of impeachment for Trump reference the 14th amendment as a reason for his removal.

While Bush’s resolution seeks an ethics inquiry into all 139 Republicans who voted to overturn the election based on lies about voter fraud, some members went above and beyond just supporting an objection.

Freshman Rep. Lauren Boebert (R-Colo.), a supporter of overturning the election results who praised the rallygoers-turned-rioters, tweeted about Pelosi’s location as the Capitol siege was underway. Some insurrectionists claimed a desire to execute her and Vice President Mike Pence.

Rep. Mo Brooks (R-Ala.) actually spoke at the rally that preceded the storming of the Capitol. 

“Today is the day American patriots start taking down names and kicking ass,” he yelled to the crowd.

Another freshman lawmaker, Rep. Mary Miller (R-Ill.), praised Adolf Hitler in a speech to the rally that turned into an insurrection. She has since apologized.

But any effort to expel House members will run into a very difficult problem. Since a two-thirds supermajority vote is needed to expel, Democrats will need substantial Republican support to remove a member. And there aren’t that many House Republicans who did not support stealing the election.

The 139 Republicans who backed Trump’s plot to steal the election constitute 66% of the entire party caucus. They also make up 32% of the full House. That means any expulsion resolution would require support from every Democratic lawmaker and all but one of the 72 Republicans who did not vote to steal the election.