Expulsion, Exclusion, Disqualification, Impeachment, Pardons: How They Fit Together

Rioters on Jan. 6 at the U.S. Capitol building. (Tyler Merbler, https://tinyurl.com/52e3y8a2; CC BY-2.0, https://creativecommons.org/licenses/by/2.0/deed.en) Weeks after the Jan. 6 riot at the Capitol Building, the fallout continues as the Senate convenes for the second impeachment trial of former President Trump over Trump’s behavior before and on the day of the riot. Meanwhile, some members of the House have accused other members of inviting future rioters into the Capitol before Jan. 6. And questions of how Congress disciplines its own members are relevant once again after a majority of the House voted to remove Rep. Marjorie Taylor Greene from her committee assignments for anti-Semitic and violent statements that she made before entering Congress. Also pending in the House is a motion to expel her for those statements. The clauses in the Constitution governing expulsion and exclusion from Congress, impeachment, disqualification from public office, and pardons are obscure and have rarely been interpreted by Congress or the courts. Yet these clauses are interrelated and can lead to striking and provocative conclusions. Any member of Congress who assisted the Jan. 6 assault on the Capitol can be not only expelled from Congress but also excluded upon reelection. Short of conviction by the Senate in the impeachment trial, former President Trump can be disqualified from holding any federal or state office if the Senate makes a finding of fact that he engaged in the Jan. 6 insurrection. And, perhaps most strikingly, pardons issued and the bills signed by Trump after Jan. 6 are constitutionally invalid. Expulsion and Exclusion Under Article I Article I, Section 5, Clause 2 of the Constitution authorizes each House to “punish its members for disorderly behavior and, with a two-thirds vote, expel a member.” To best explain how expulsion interacts with Section 3 of the 14th Amendment, I’ll first review the expulsion process separate from Section 3, and then consider them alongside one another. Greene was sworn into Congress on Jan. 3, the first day of the present session. She can be expelled for statements—speeches and tweets—that were made before that date. Article I, Section 5, Clause 2 is an enumerated power that is written in unqualified language and gives the House plenary authority to expel a member. The House alone can determine the cause for expulsion—any conduct that reflects negatively on the House. The House has consistently taken that position and the Supreme Court endorsed it in In re Chapman , one of its two cases that discuss expulsion.  An expulsion decision by the House is almost certainly not subject to judicial review. United States v. Nixon held that decisions by the House and Senate on impeachment are not judicially reviewable. The case for exclusive jurisdiction in each House to discipline its members, including with the ultimate punishment of expulsion, is at least as strong. This does not mean that there are no constraints against the House abusing its expulsion power. The constitutional constraint is the requirement of a two-thirds vote. There are also serious policy constraints: political partisanship, fear of constituent backlash and a natural reluctance to expel a member for misbehavior because that could be turned onto any other member. In particular, one would expect members of Congress to be reluctant to expel a member for statements outside of the House. Expulsions have in fact been quite rare. Only 15 senators have been expelled from the Senate, 14 of whom were senators representing Confederate states; in the House, only five members have been expelled, three of whom were Confederates. Lesser punishments, which both chambers can impose by majority vote, have effectively replaced expulsion. Censure has been used 23 times in the House, and reprimand has been used 11 times in that chamber. The chambers can also use withdrawal of privileges like committee assignments.  The House has sometimes taken the position that a member should not be expelled for conduct that occurred prior to that session of Congress, at least when that conduct was known at the time of the election—which would put a constraint on expelling Greene for her statements before Jan. 3. The reasoning is that the voters knew about the misconduct and elected the member anyway. Expelling the member would amount to the House overriding the will of the people. But this is an issue of policy and not of constitutional law. In the Chapman case, the Supreme Court endorsed the 1797 Senate expulsion of William Blount for actions taken before he took office. Whether the House adheres to its precedents on pre - session conduct is a matter of discretion. Imagine that Greene is expelled for her pre-Jan. 3 statements but runs again and is reelected. In this scenario, the House cannot refuse to seat her. Exclusion is very different from expulsion: Exclusion requires only a majority vote, and the House can refuse to seat a member only for not satisfying the qualifications listed in the Constitution for age, citizenship and residency under Article I, Section 2, Clause 2. Madison was emphatic in The Federalist Papers that neither House could impose additional qualifications, and the Supreme Court so held unanimously in Powell v. McCormack . Powell was accused of embezzling House funds during earlier sessions, and the House voted to exclude him. The Supreme Court held that he could not be constitutionally excluded, while acknowledging that he could be expelled on a two-thirds vote. So if Greene was expelled for her vile statements, she would have to be seated if reelected. Theoretically, she could be expelled again, but not as a practical matter. Section 3, Expulsion, Exclusion and Disqualification Now consider the effect of Section 3 of the 14th Amendment. That provision states that no person can be a member of Congress or hold any federal or state office if the individual previously took an oath to support the Constitution as a member of Congress, as an officer of the United States, or as a state legislator, executive, or judge, and then engaged in insurrection or rebellion against the United States or gave aid and comfort to the enemies of the United States (the last term being a constitutional definition of treason). Suppose that the FBI uncovers evidence that before Jan. 3, a member of Congress conspired with extremist groups to storm the Capitol for the purpose of overturning the presidential election. Of course, that member could be expelled for this behavior independently of Section 3, as outlined above. But any pre-Jan. 3 conduct might not fall within Section 3 because that provision applies only to those who had taken the constitutional oath—that is, prior officeholders or members of the military. Greene, for example, was neither before entering Congress, so Section 3 would not apply even if she were found to have taken part in the insurrection prior to becoming a member of Congress.  This limitation of Section 3 may not seem to make sense, but the oath requirement was added to target the white Southern aristocracy that had governed the South before the Civil War—a group that Republicans blamed for the Civil War. If Section 3 had been written to apply to all people who engaged in the rebellion, it would have disqualified the vast majority of all white Southerners. Gerard Magliocca describes this history in his excellent recent article discussing the development and post-1868 enforcement of Section 3. If the FBI uncovers evidence that a member of Congress assisted the insurrection between Jan. 3 and Jan. 6, by contrast, the member would be subject to Section 3 in an expulsion proceeding. What if the member then runs for and wins reelection? As described, expulsion alone does not disqualify a one-time member of Congress from being sworn in again—so the question is whether adding Section 3 into the mix would change the outcome. To put it another way, does Section 3 only state grounds for expulsion, or does it also impose a disqualification requirement?  Facially, Section 3 appears to impose a new qualification for being a member of Congress: “No person shall be a Senator or Representative in Congress” who engaged in insurrection, rebellion or treason against the United States after having taken the constitutional oath. Compare this to Article I, Section 2, Clause 2, which set the pre-amendment age, citizenship and residency qualifications for representatives: “No person shall be a Representative who”—exactly the same categorical language as used in Section 3. And the same categorical “No person shall be” language is found in Article I, Section 3, Clause 3, which set the age, citizenship and residence qualifications for being a senator.  Age, citizenship and residence were the initial three qualifications for being a member of Congress. The 14th Amendment added a f
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