Fallout and Consequences, Part One: Who is Accountable?

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January 13, 2021

The events at the Capitol on January 6 are forcing voters and elected officials to face some challenging questions. In a previous blog post, we provided some resources to help you begin to address some of these questions; in an upcoming post, we will examine other questions related to free speech. In this post, we focus on two key questions for elected officials: Who should be held accountable? What should accountability look like?

Should the President Be Held Accountable?

Federal and state law enforcement officials have arrested well over 100 of the rioters who attacked the Capitol,¹ the U.S. Capitol Police has suspended and is investigating a number of officers for their alleged roles in the assault,²and the U.S. Capitol Police chief³ and the acting secretary of Homeland Security have resigned.⁴One other person who many Americans argue should be held accountable is President Donald Trump. In addition to spreading misinformation about the election,⁵ President Trump called for supporters to descend upon Washington, D.C., on January 6,⁶ and addressed the gathered crowd shortly before the assault on the Capitol.⁷

During his remarks, President Trump said, “And after this, we’re going to walk … down to the Capitol and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.”⁸ Some people point to these comments as evidence of President Trump’s culpability.⁹

READ: “Incitement Timeline: Year of Trump’s Actions Leading to the Attack on the Capitol,” from the Reiss Center on Law and Security at New York University School of Law

So, what options do elected officials have if they choose to hold President Trump accountable?

Vice President Mike Pence has the authority to invoke the 25th Amendment with a majority vote of the cabinet. Section 4 of the 25th Amendment states, “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

The House of Representatives passed a resolution calling on Vice President Pence to invoke the 25th Amendment, but thus far, he has dismissed the idea.¹⁰ Only one Republican member of the House, Representative Adam Kinzinger, R-Ill., supported the resolution.¹¹ The resolution only expresses the will of the House; it does not compel the vice president to take action.

Another possible action that is already underway in the House is impeachment. More Republicans in the House and the Senate are open to this approach than they are to the use of the 25th Amendment.¹² Representative Liz Cheney, R-Wyo., said of President Trump’s behavior that there has “never been a greater betrayal by a president of the United States.”¹³

Senate Majority Leader Mitch McConnell, R-Ky., has said that he will not recall senators to act as a jury for impeachment proceedings, meaning that a trial could not happen until after President Trump leaves office.¹⁴ However, an impeachment in the House and a conviction in the Senate would bar President Trump from seeking federal office in the future. Some Republicans, including McConnell, reportedly support this move because it would help the Republican Party move past President Trump.¹⁵

Another option, the use of Section 3 of the 14th Amendment, applies to President Trump and possibly other elected officials as well.

Holding Members of Congress Accountable

Some political leaders and commentators argue that there are members of Congress who deserve to be held accountable as well. One idea that’s being explored is the use of a clause in the 14th Amendment to bar people who have been found to have supported the assault on the Capitol from holding office in the future.

Section 3 of the 14th Amendment reads, “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.”

Many analysts agree that the 14th Amendment could be used to bar President Trump from ever holding office again, and that it could be invoked at any time before or after he leaves office.¹⁶ However, it is not clear if the 14th Amendment could be used against members of Congress.

Newly elected Representative Cori Bush, D-Mo., has put forward legislation—H.R. 25—that calls for an investigation into, and the potential expulsion from Congress of, all members who supported President Trump’s efforts to contest the results of the election.¹⁷ But some observers dispute that Congress even has the authority to do this.¹⁸ “My view is the members who voted against the certification didn’t do anything unlawful or unconstitutional,” said Gerard Magliocca, a law professor at Indiana University. “People might not like it, and they can be criticized for doing that, but I don’t see it as grounds for an exclusion or an expulsion.”¹⁹

As lawmakers and others continue to explore options for holding elected officials accountable, the assault on the Capitol will likely stay on the minds of voters in future elections.

Discussion Questions

How did you react to the scenes at the Capitol last week?
Who do you hold responsible for what happened?
Should elected officials be held accountable if their words or actions inspire violence?
Of the ideas being explored so far (the 25th Amendment, impeachment, the 14th Amendment), is there one that you support? Why or why not?
How will the events of the last few days impact your political decision-making in the future? Will it impact how you vote?

Sources

Featured Image Credit: James Quigg/Daily Press

[1] The Hill: https://thehill.com/homenews/news/533579-most-of-120-arrested-or-identified-at-capitol-riot-were-longtime-trump

[2] CNN: https://www.cnn.com/2021/01/11/politics/capitol-police-officers-suspended-tim-ryan/index.html

[3] Washington Post: https://www.washingtonpost.com/local/public-safety/sund-resigns/2021/01/10/f3a9ceca-5365-11eb-a08b-f1381ef3d207_story.html

[4] New York Times: https://www.nytimes.com/live/2021/01/11/us/capitol-riot-police-building

[5] NBC News: https://www.nbcnews.com/politics/2020-election/we-won-trump-spreads-misinformation-about-2020-election-during-final-n1252802

[6] Orlando Weekly: https://www.orlandoweekly.com/orlando/president-trump-tweeted-big-protest-in-dc-on-january-6th-be-there-will-be-wild-and-thousands-of-insurrectionists-heeded-the-call/Content?oid=28622391 New York Times: https://www.nytimes.com/2021/01/06/us/politics/capitol-mob-trump-supporters.html

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