The direct answer to the question posed in the title is, it is complicated.
Section 3 of the 14th Amendment is very clear on the subject.
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. But Congress may by a vote of two-thirds of each House, remove such disability.
There is no question that certain sitting members or newly reelected members of Congress do not qualify to hold office under this clause.
The problem we are faced with is who is going to remove them?
The first, and one would think most obvious, option would be for Congress to refuse to seat new members who fall under Section 3, also known as the qualifications clause. Indeed, between 1869 to 1900, the House of Representatives refused to seat over 30 Southern Democratic candidates declared the winner by their states.
But in 1969, in the Supreme Court decision Powell v. McCormick ruled “An individual who meets the constitutional requirements for being a member of the House of Representatives may not be denied a seat there upon being properly elected.” Thus the avenue of refusing to seat insurrectionists is not an option.
The next remedy is to expel those members once seated. Again, easier said than done.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Because of our closely divided Congress, getting a two-thirds vote in either house for anything, much less participation in or aiding those involved in insurrection, has a likelihood of success on a par with predicting who the next multi-state lottery winner will be.
Whose Job Is It?
Following the Civil War and the rise of resistance to the freeing of slaves in the southern states, the ugly manifestation of the Ku Klux Klan came into being. This was white supremacy implemented by terrorists with white hoods, guns, bombs and ropes. Congress responded with the passage of the 14th Amendment and the enforcement acts of 1870 and 1871—the latter known to this day as the Ku Klux Klan Act.
The Department of Justice was also established in 1870 to provide the prosecution muscle necessary to implement these acts.
The oath of office sworn by all officials of every government branch and Members of Congress is,
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
This oath, coupled with the fact that the common thread of those involved in the January 6th Insurrection is white supremacy, makes it incumbent upon the Department of Justice to take actions against these offending members by prosecution and conviction, thus forcing their removal from the halls of government. Not only is this required by the oath of office by every member of the DOJ, it is part and parcel with their establishment principles.
After seeing the televised hearings of the House Select Committee on the insurrection, the one thing the Department of Justice does not lack is evidence.
Let’s get to it. You have an oath to comply with.
Marty Kassowitz is co-founder of Factkeepers. As founder of Interest Factory and View360, he brings more than 30 years experience in effective online communications, social media management, and platform development to the site. He is a writer, designer, editor and long time observer of the ill-logic demonstrated by too many members of the species known as Mankind. After a long history of somewhat private commentary on a subject he totally hates: politics, Marty was encouraged to build this site and put up his own analyses as well as curate relevant content from other sources.