How Speaker Nancy Pelosi Could Exclude the Seditious 126
By: Nicolas Carteron
Tags: Politics, Congress, Constitution, Law, Election 2020

Speaker Pelosi could, and should, decide to move for their exclusion under the 14th Amendment. Here’s a step-by-step guide on how to achieve this.

The 14th Amendment

The 14th Amendment was adopted in 1868 as one of the Reconstruction Amendments. It addressed the crucial question of citizenship, but also the duties of elected representatives.

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.

The crucial part here is “having engaged in insurrection or rebellion” against the state.

Let’s look at the legal definition of insurrection or rebellion, per Cornell Law.

18 U.S. Code § 2383. Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

We can also look, to be thorough since we used the word seditious, at the legal definition of “sedition.”

18 U.S. Code § 2384. Seditious conspiracy

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

There is no argument that 126 people agreeing to support a lawsuit whose objective was the disenfranchisement of millions of legally cast votes to subvert a valid election constitutes a seditious conspiracy. It is an act of insurrection against the authority of the United States.

Article 1, Section 5, US Constitution

This provision of the Constitution states that:

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.

To exclude the Seditious 126, Speaker Pelosi would first have to refer their cases to the Committee on Standards of Official Conduct (House Ethics Committee) who would decide on the correct way forward.

Should they recommend exclusion (for representatives-elect) or expulsion (for seated reps), the vote would then move to the House floor where it requires a majority of 2/3 to be accepted.

This vote would never pass unless there was a provision about recusal somewhere to be found…

House Rule III & Precedent

Thankfully, someone with foresight penned House Rule III, which states that:

Every Member shall … vote on each question put, unless having a direct personal or pecuniary interest in the event of such question.

House Members could not vote on their own expulsion, but the reasoning could be extended to the 126 members as a block.

In Zafiro v. United States, the Supreme Court argued:

[T]here is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.

We can also mention United States v. McDonnell and United States v. Williams as cases emphasising this view.

In light of this ruling, it could and should be argued that all 126 members should recuse from voting on the matter related to the conspiracy.

Getting to 2/3

Assuming 126 members have to recuse themselves, the quorum for a vote would be brought down to 309 House Members.

2/3 of 309 is 206.

The Democrats have a House majority of 222 as of the writing of this article. They could therefore exclude or expel the Seditious 126 without hassle (but certainly with much ado).