In an effort to kick Republican candidates off the ballot for the crime of supporting Donald Trump, Democrats are reaching back more than 150 years to a rarely invoked constitutional provision designed to prevent Confederates from serving in Congress.
Democrats and a handful of Trump Derangement Syndrome-suffering Republicans claim the disturbance on January 6, 2021, that delayed formal congressional certification of the 2020 presidential election results for several hours, was an insurrection or rebellion aimed at overthrowing the United States government.
Facts are no impediment to this durable leftist fantasy.
The facts are that the crowd carried no guns, that police invited many of the alleged trespassers into the facility, that no hostages were taken, and that only minor damage was done to the United States Capitol building.
Although the democratic process was assaulted relentlessly by leftist election officials and judges from coast to coast throughout the 2020 election cycle and its aftermath, it was never under threat on January 6 a year ago.
When the mainstream media falsely reported what happened January 6 was a coup attempt, instead of an anguished cry for help by the unjustly disenfranchised, the news must have come as a surprise to the vast majority of Americans who innocently visited the Capitol that day. And the only person who was actually killed, Trump supporter Ashli Babbitt, was martyred by Michael Byrd, an overzealous policeman who claims the senseless murder he committed somehow “saved countless lives.”
Yet this protest action that got out of control has hardened into an insurrection in leftist myth. Unlike the pure-minded Black Lives Matter and Antifa ruffians who burnt down American cities in 2020, the January 6 protesters were hellbent on destroying the republic by overturning the results of a corrupt, illegitimate election.
Prominent Republican congressmen who vocally stood by the Trump campaign and challenged suspect electoral votes in Congress are now being targeted by the Left.
The vehicle for attacking them is the Disqualification Clause, that is, Section 3 of the 14th Amendment to the U.S. Constitution, which was ratified in the wake of the Civil War to exclude from office violent Democrats who engaged in a bloody insurrection aimed at undoing the Union. There has been an awful lot of talk in Democrat circles and in Congress about using the clause, part of an amendment ratified in 1868, against Trump, but so far it’s just hot air.
The part of that constitutional provision relevant to congressmen states: “No person shall be a … Representative in Congress … who, having previously taken an oath, as a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same …”
Yet today, Democrats, who routinely tolerate, downplay, and applaud violence directed at their enemies, are using this language that was drafted to keep thuggish Democrat subversives out of office against Republicans who, compared to Democrats, are virtually pacifists.
It appears the last time the Disqualification Clause was used was 1919, against Rep. Victor L. Berger of Wisconsin, the first Socialist elected to Congress.
Berger was convicted of violating the Espionage Act for publicly opposing U.S. participation in World War One, a war prosecuted by President Woodrow Wilson, a Democrat who was arguably the closest thing to a fascist ever to occupy the Oval Office. Congress denied Berger his seat. After the Supreme Court overturned his Espionage Act conviction, Berger went on to be elected to three more terms in the House of Representatives.
This insidious tactic is the brainchild of the exquisitely sleazy lawyer Marc Elias, a principal conspirator in the “Russiagate” hoax.
Elias represented the Democratic National Committee and Hillary Clinton’s campaign in the 2016 presidential election cycle, retaining Fusion GPS in April 2016 to conduct opposition research against then-candidate Donald Trump. That research effort culminated in the salacious, now-discredited 35-page dossier written by former British spy Christopher Steele that purported to tie Trump to the Russian government. The hoax is now the focus of special counsel John Durham.
During post-Election Day 2020 litigation, Elias and other members of his law firm, Perkins Coie, were sanctioned by the U.S. Court of Appeals for the 5th Circuit for deceiving the court.
Elias also famously engineered Democrat Al Franken’s theft of Republican Norm Coleman’s U.S. Senate seat in the farcical recount saga in 2008-2009, a move that helped secure the Senate votes needed to pass Obamacare.
Elias, who has a long history of successfully challenging electoral integrity laws in court, began laying out a blueprint for using the 14th Amendment to boot Republicans off the ballot in a provocative Twitter post on December 20, 2021.
“My prediction for 2022: Before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress[,]” Elias tweeted. “We may even see litigation.”
“It seems quite likely that one or more Republican members of Congress will be subject to this disqualification, and it is important that we start to identify them now,” Elias added three weeks later at his Democracy Docket website. (Ever notice how whatever Democrats want is “democracy,” but whatever Republicans want isn’t?)
Preferably, the U.S. Department of Justice would lead this effort and “evaluate not just the criminal liability of people involved in the insurrection, but constitutional disqualification under the lower civil standard of proof.” If the DoJ doesn’t do it, “Congress and private litigants will need to step in to vindicate this constitutional disqualification.”
Days after his tweet, Republicans quite rightly objected to this anti-democratic tactic, just as they did when a young Barack Obama used technicalities to disqualify rivals from the ballot.
But Elias laughed at them.
“This tweet has completely triggered the GOP and right-wing. They are losing their minds over the idea that the Constitution might actually be followed.”
Law professor Jonathan Turley, one of the very few left-wing commentators capable of speaking the truth because he is not blinded by leftist ideology, called out the Elias tactic.
“Nothing says democracy like barring people from running for office apparently,” Turley told Tucker Carlson on January 4 of this year.
“It’s very common in countries like Iran. They just disqualified hundreds of people from their ballot.”
The tactic is “based on a very flawed understanding of” the Disqualification Clause, which was inserted into the Constitution after Alexander Stephens, who had been vice president of the defeated Confederate States of America, “showed up in 1865 to resume being a member of Congress.”
His appearance “didn’t go over very well,” so an amendment was proposed that said “if you took a previous oath to the United States and you broke it, you went with the rebellion, then you really can be disqualified from office.”
But at that time there really had been “a rebellion,” the Civil War, in which “750,000 people died,” Turley said.
“And so what they are suggesting here is that this [i.e. January 6] was really a rebellion and that these members, by supporting the challenge to the electoral votes, were giving essentially aid and comfort to the rebels. And they could be disqualified. One Democratic number has suggested disqualifying 120 Republicans because they signed on to a brief supporting a challenge of the election in Texas.”
Turley separately noted in a column in The Hill that “members of Congress who supported challenging the electoral votes (as Democrats have done in prior years) were exercising constitutionally protected speech.”
In Congress, Democrats, who are now pushing “to federalize elections” and “negate” election laws in many states, “cannot simply use their razor-thin majority to disqualify opponents willy-nilly. Punishments like expulsions take two-thirds votes, and any disqualifications can be challenged in the court,” he wrote.
The year after the constitutional amendment was ratified, Chief Justice Salmon P. Chase ruled in a circuit opinion that the Disqualification Clause “was not self-executing,” Turley wrote. Chase “suggested that allowing Congress to simply bar political opponents from office would be a form of punishment without due process and would likely violate the prohibition on bills of attainder.”
Target: Congressman Jim Banks of Indiana
So far in the 2022 election cycle, the Disqualification Clause has been used against GOP congressmen in Indiana and North Carolina.
The Indiana challenge failed February 18.
The bipartisan Indiana Election Commission unanimously dismissed a legal challenge brought by Aaron “A.J.” Calkins of Fort Wayne, Indiana, who is running in a three-way Democratic Party primary for the right to face third-term U.S. Rep. Jim Banks (R-Ind.) in the November general election.
In a rambling, at times incoherent, oral presentation, Calkins claimed that Banks, an outspoken Trump supporter, participated in an insurrection by voting during a joint session of Congress Jan. 6 and Jan. 7, 2021, against certifying Democrat Joe Biden as the winner of the electoral votes of Arizona and Pennsylvania.
“They wanted to steal the election. They wanted to turn off the results and make Trump president,” he said. When Banks “co-signed into” a lawsuit contesting the results, he wanted “to basically disenfranchise 30 million voters from five states,” according to Calkins.
What took place on Jan. 6, 2021, was “an insurrection, people invading the U.S. Capitol,” he said.
“When I saw that happen, I thought this is horrible. This is as bad as burning it down in 1812,” Calkins said, seemingly a reference to the burning of the U.S. Capitol building by the British on Aug. 24, 1814, during the War of 1812.
“There was a violent insurrection by the people who had invaded the Capitol. And then there was a political insurrection, people that were going to try and take it down, just like they did in 1776.”
Paul Mullin, Banks’s lawyer, said the allegation was “baseless,” and that his client had denounced the security breach at the Capitol. “This challenge itself is an attempt to undermine democracy,” he said.
Commission chairman Paul Okeson said January 6, 2021, was “a regrettable mark in history,” but there was no evidence showing Banks participated in an insurrection.
After the hearing, Banks issued a warning to Americans.
“Many Democrats in Washington hope to weaponize the 14th Amendment to disenfranchise President Trump’s 74 million voters,” the congressman said. “I hope they watched today’s unanimous decision.”
Target: Congressman Madison Cawthorn of North Carolina
Like Banks, Rep. Madison Cawthorn (R-N.C.) voted against certifying the electoral votes from Arizona and Pennsylvania.
Unlike Banks, he spoke at the pro-Trump “Stop the Steal” rally on the National Mall on January 6, 2021, hours before Capitol security was breached.
“This crowd has some fight in it,” Cawthorn said at the rally.
“The Democrats, with all the fraud they have done in this election, the Republicans hiding and not fighting, they are trying to silence your voice. Make no mistake about it, they do not want you to be heard.”
Later, Cawthorn forcefully denounced the breach, calling it “despicable.”
“I thought it was conducted by weak-minded men and women who are unable to check their worst impulses and had very little self-control.”
The North Carolina State Board of Elections is not currently blocking the first-term congressman from running again, but stated in a recent federal court filing that it has the power to do so under the Disqualification Clause.
The state has “authority to police which candidates should, or should not, be disqualified per Section 3 of the Fourteenth Amendment.”
Cawthorn attorney James Bopp Jr. told this writer that the board has no such legal authority and that the word “fight,” which the lawmaker used during the rally, is everyday political rhetoric that is protected by the First Amendment.
“There was absolutely nothing–none of his speech encouraged anyone to perform any illegal acts or to even go into the Capitol at all in any way,” he said.
Using speech such as “‘we need to fight for our political rights,’ cannot possibly be used … to punish somebody.”
The challenge lodged against his client is an “unconstitutional effort to undermine democracy,” and an example of “projection … [something] the Left does all the time.”
“This is a classic example of the Left claiming Republicans are undermining democracy where they are trying to do that themselves,” Bopp said.
The Left is relying upon an “absurd and ridiculously unconstitutional interpretation” of the Disqualification Clause, he said.
Meanwhile, the 2022 election cycle is barely underway.
Chances are Democrats will invoke the Disqualification Clause again in their drive to make America a one-party state.