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We have been discussing the effort in Congress to punish dissenting viewpoints among members on issues ranging from the Jan. 6th riot to the pandemic to racism. This has included sweeping calls for members to be disbarred or expelled for their criticism of the 2020 election or continued questioning of election irregularities. Rep. David Cicilline (D., R.I.) has been one of those calling for punishment of members who have the temerity to disagree with his view of the election or the riot.  Now, Cicilline is asking Democratic colleagues to sign on to a resolution to censure three House Republicans who are accused mischaracterizing the Jan. 6 riot, including refusing to call it an “insurrection.” It is the latest attempt to regulate how members and others discuss issues, dictating viewpoints by controlling speech used to express views.

Cicilline is demanding a resolution to censure Republican Reps. Andrew Clyde (Ga.), Jody Hice (Ga.) and Paul Gosar (Ariz.) for remarks that he felt downplayed the violent attack on the Capitol during a House Oversight and Reform Committee hearing this week. This included the failure to use the seemingly mandatory reference to the riot as an “insurrection”:

“The members who testified that January 6th was ‘not an insurrection’ and undermined the damage that was done put their own political agendas above their country. In doing so, they recklessly disregarded the future harm they could cause by legitimizing a violent attack on our democratic institutions – a conscious and harmful decision calling into question their dedication to their role as Representatives’”

The obvious problem is that rejecting the term “insurrection” is not “legitimizing a violent attack.” Many of us refer to the violence as a “riot” because it makes fewer assumptions as to the motivations of all of those present. It is not to downplay the violence or its implications for our country.  I condemned Donald Trump’s speech while he was still giving it and condemned the violence as it was unfolding. However, there were thousands of people at the protest and most were not violent and did not enter the Capitol. Those who did enter the Capitol revealed a mix of motives and actions as reflected in the charges brought by the Justice Department. Some meandered around the Capitol while others engaged in violent and destructive acts.  There was clearly a core of determined and violent individuals who engaged in a premeditated efforts to stop the certification of the votes from the election.  Recognizing such varied motives and actions does not legitimize the violence or dismiss the seriousness of the attack. As I have previously written, even if this was not technically an insurrection, it was a desecration of our constitutional process.

The most important point is that people of good faith can differ on how to characterize or understand what occurred on January 6th while still condemning the violence. The comments of Clyde received the most attention in the press. Here is what he said in pertinent part:

CLYDE: Thank you, Madam Chair. This hearing is called the Capitol Insurrectionlet‘s be honest with the American people. It was not an insurrection, and we cannot call it that and be truthful. The Cambridge English Dictionary defines an insurrection as, and I quote, “an organized attempt by a group of people to defeat their government and take control of their country, usually by violence” and then from the Century Dictionary, “the act of rising against civil authority or governmental restraint specifically the armed resistance of a number of persons to the power of the state.”

As one of the members who stayed in the Capitol and on the House floor who with other Republican colleagues helped barricade the door until almost 3 PM that day from the mob who tried to enter I can tell you the House floor was never breached, and it was not an insurrection. This is the truth.

There was an undisciplined mob; there were some rioters and some who committed acts of vandalism but let me clear, there was no insurrection, and to call it an insurrection, in my opinion, is a bold-faced lie. Watching the TV footage of those who entered the Capitol and walked through Statuary Hall showed people in an orderly fashion staying between the stanchions and ropes taking videos and picturesYou know, if you didn’t know the TV footage was a video from January 6th, you would actually think it was a normal tourist visit.

There were no firearms confiscated from anyone who breached the Capitol. Also, the only shot fired on January 6th was from a Capitol Police officer who killed an unarmed protester, Ashli Babbitt, in what will probably be eventually be determined to be a needless display of lethal force.

Notably, Clyde then undermined his distinction between a riot and an insurrection by stating that the real insurrection was the Russian collusion scandal:

I agree with that 100 percent, you know, but the only insurrection that I have witnessed in my lifetime was the one conducted by members of the FBI with participants from the DOJ and other agencies under the banner Russia, Russia, Russia. High-ranking employees from these federal agencies and members of an independent counsel coordinated and fed a false narrative for over two years that the 2016 election was stolen and illegitimate.

Democrats were on the news almost every night saying the evidence is there, and the mainstream media amplified the fake news. This was indeed a very coordinated and well-funded effort by a determined group of people to overthrow our duly elected President Donald J Trump.

The statement taken as a whole is self-contradictory and ultimately incoherent.  However, Clyde was not defending the rioters but objecting to the characterization of their criminal conduct as an insurrection.  Members like all citizens are allowed to draw such a distinction. Indeed, members are protected in doing such by not just the First Amendment but the Speech and Debate Clause of the Constitution.

Clearly, the Congress has the right to censure any member. Under Article I, Section 5  “[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” However, to do so over such a question is an abusive of the legislative process.

Rep. Hice focused on defending former President Donald Trump from allegations that he incited an insurrection, the basis for his second impeachment. That is an issue that still divides this country with good arguments on both sides.

As for Rep. Gosar, he criticized the handling of the investigations and prosecutions by the Justice Department as excessive and pointed out how the lead prosecutor boasted on television that they sought to hit defendants so hard as to create “shock and awe” to deter others. He specifically questioned the handling of the investigation into the death of Ashli Babbitt, a case that raised concerns for many including myself.

Again, I do not agree with some of the characterizations or rhetoric of these members.  However, the attempt to censure colleagues for holding such opposing views is a disgraceful use of legislative authority.  Cicilline wrote:

“These three members dangerously mischaracterized what happened that day and showed more sympathy for the domestic terrorists than the Capitol police officers who died during the attack…These members cannot be allowed to rewrite history at their convenience by disrespecting the sacrifices made by Capitol police officers and downplaying the violent, destructive intent that rioters carried into this sacred building,” Cicilline added. ‘The January 6th insurrection was an attack on our democracy that we must continue to defend against today.’”

Read that over a few times. Cicilline wants to censure colleagues for “dangerous mischaracterizations [of] what happened that day.” Putting aside the irony given challenges to Cicilline’s own often over-hearted rhetoric (including as a House impeachment manager), he is seeking to punish colleagues for holding an opposing view of what occurred on that day.

As support for this abusive measure, Cicilline cited the expulsion of 17 members of Congress during the Civil War for “disloyalty to the United States.”  Cicilline is historically correct about the expulsions but absurdly off-base in his analogy to the current controversy.

The move to expel these members occurred on March 1861. That was a month after the start of the war with the firing on Fort Sumpter. On April 15, President Lincoln declared an insurrection. By that time, most Southern members rushed back to support the Confederacy, leaving vacancies in Congress. Maine Sen. William Pitt Fessenden thought it was insane to hold the seats for members who left the Senate to join a rebellion.  The Senate agreed and struck the names of the senators.  In July 1861, The 10 senators were expelled in July 1861 for being engaged “in a conspiracy against the peace and union of the United States Government” for their support of the Confederacy, according to the Senate.  Keep in mind that the first Battle of Bull Run occurred on July 21, 1861.

One senator was expelled on Dec. 4, 1861 because John Breckinridge, of Kentucky, had waited to see if Civil War could be avoided but then “joined the enemies of his country, and is now in arms against the Government he had sworn the support.” What is interesting is that, in October 1861, Breckinridge sent a formal letter of resignation to the Senate but months later Michigan Sen. Zachariah Chandler still moved to expel him. Ultimately, 14 senators were expelled.

Those were members who supported a civil war that costs hundreds of thousands of lives, including some like Breckinridge who took up arms in the Confederate forces. Cicilline sees no distinction with colleagues who condemned the violence but characterized it as a riot rather than an insurrection. Again, Cicilline insisted “We cannot allow this abhorrent mischaracterization to go unchecked.”

Just as our Constitution protects against the tyranny of the few, it also protects against the tyranny of the majority. As Madison said, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.”

While a censure is unlikely to prompt judicial review (which is why it likely appears to Cicilline), it is still an offense to our constitutional values.  The Cicilline resolution should be condemned by members of both parties as an abusive legislative authority and inimical to the legislative process.  He would open a Pandora’s Box of politically retaliatory measures that would see no end in our age of rage. There remain members on both sides who continue to fuel our divisions and capitalize on our tragedies for political purposes. No party owns the rights to Jan. 6th or the national pain caused by the attack. It remains an open wound for our nation as a whole. We will continue to debate the causes and the characterization of that attack on Congress. However, members cannot dictate how others reference or interpret these events.

 

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