There is a question lurking for many Americans since the attack on the U.S. Capitol on Jan. 6: How does the United States reckon with traitors inside the ranks of its own government?
As one surveys the damage wrought by the last administration, it can be alluring and easy to rush in angrily, clamoring for the immediate expulsion of any legislators who even so much as appear to have been actively working or plotting to overthrow the nation’s democratic process this January.
Those bellows grow louder when the patently divisive words and deeds of some lawmakers stack up at such a rapid clip—and typically without a hint of remorse—across any airwave that will have them.
Amplifying those cries is the bombshell Rolling Stone article published this week citing three anonymous sources who claim to have knowledge of those engaged in the planning and organizing of rallies for former President Donald Trump, which lead up to an attempt to overturn the election results on Jan. 6.
Unsurprisingly to those who have been paying attention to the machinations of the Republican wing of the House of Representatives, the sources aim their allegations squarely at a handful of lawmakers who have hitched their wagon indelibly to Trump: Reps. Marjorie Taylor Greene of Georgia, Paul Gosar and Andy Biggs of Arizona, Lauren Boebert of Colorado, Mo Brooks of Alabama, Louie Gohmert of Texas, and Madison Cawthorn of North Carolina.
The report has prompted swift denials from each of these lawmakers, and threats of possible defamation lawsuits have been issued by at least one of those legislators publicly.
And so as the Jan. 6 committee tends to its probe, the conversation on many a social media channel and around many a dinner table hinges on this question: What should we do with these lawmakers who have so deftly captured huge swaths of their constituencies with lies about the 2020 election, and who may have aided an insurrection?
The U.S. Constitution grants the House and Senate the power to determine their own rules for their proceedings and to decide how, when the moment calls for it, to punish any conduct deemed disorderly so that each entity can expel those lawmakers from their elected positions.
Historically, according to the Congressional Research Service, only three members of the House of Representatives have been expelled specifically for “disloyalty” to the United States, and in particular for “fighting for the Confederacy:” John B. Clark and John W. Reid of Missouri, and Henry C. Burnett of Kentucky.
Unlike the lawmakers at the center of the claims inside the Rolling Stone report, when they were expelled in 1861, Clark nor Reid nor Burnett were cited with refusing the results of the election that ultimately swept Abraham Lincoln into the presidency.
Where these worlds, now centuries apart, intersect is at the mantle of “disloyalty” to the United States and conduct unbecoming of a lawmaker.
But a person’s intent is hard to prove, especially so in the court of public opinion, which drives so much upward pressure to the halls of Congress.
Mark Zaid, a national security and whistleblower attorney who currently represents U.S. Capitol police officers Pvt. First Class Harry Dunn and Sgt. Aquilino Gonnell, said in an interview with Daily Kos this week that there is a way forward to real accountability for those who sought to strong-arm the will of some 81 million voters who rejected Trump last November.
First, Zaid said, one must remember that while members of Congress have immunity for many of their activities as elected officials, the Speech or Debate Clause of the Constitution “has been interpreted to encompass activities on the floor of the House or Senate, or in committee rooms.”
“It doesn’t apply just anywhere,” Zaid added.
If a member were to leak classified or sensitive information to someone during a meeting at a hotel—like at the Willard Hotel in Washington, D.C., where Trump’s team had a so-called war room to coordinate attempts at overturning Joe Biden’s victory—that is prosecutable, and immunity does not necessarily apply.
“If they released the classified information on the floor of the House or Senate, for example, however, they have immunity,” Zaid said.
In 2006, Zaid sued the late Rep. John P. Murtha, a Pennsylvania Democrat, for defamation on behalf of Frank Wuterich, a Marine Corps staff sergeant. Wuterich claimed Murtha defamed him when Murtha said Wuterich “killed in cold blood” two dozen Iraqi citizens after a roadside bomb killed a member of his Marine troop.
Murtha claimed he was acting in his official capacity when making the comments and therefore, he argued, was immune to the lawsuit. Wuterich relied on precedent established under Westfall v. Erwin, which found absolute immunity “does not shield official functions from state-law tort liability unless the challenged conduct is within the outer perimeters of an official’s duties and is discretionary in nature.”
Wuterich’s trial judge, at first, sided with the staff sergeant and ordered Murtha to provide discovery for his motives that led to the accusation. But the U.S. Court of Appeals for the District of Columbia overturned the order for discovery and ruled that Murtha, who had made the comments to reporters, acted within the scope of his job. Therefore, the court found that Wuterich had failed to prove Murtha was not immune.
Unlike the Murtha matter, lawmakers who plot an insurrection in private should not be surprised to learn that such conduct far exceeds the scope of their jobs.
The Jan. 6 committee could attempt to bring the lawmakers named in the Rolling Stone report before them and issue subpoenas.
“No doubt it would be challenged in court, and it would not be a quick process,” Zaid said, underlining that the committee’s action in this case would not be in respect to criminal culpability, but rather just to compel testimony.
It’s likely that this will be “less of a legal issue” than a “political policy issue,” he added, because of the fervor whipped up by Republican leadership in the House that has admonished all of the select committee’s work as overwhelmingly partisan.
While railing against it, it should be noted, House Minority Leader Kevin McCarthy regularly omits the fact that the Democratic majority provided ample opportunity to Republicans to form a commission evenly split between Democrats and Republicans.
In any event, none of this means that ethical breaches at the alleged center of Trump’s still-loyal foot soldiers are merely unresolvable.
Indeed, in this case, Zaid said, it is the House Ethics Committee that is explicitly empowered to give redress because every sitting member of the House is subject to their jurisdiction.
“And the only way they could escape that, would be to resign. Those investigations do not continue if they don’t have jurisdiction,” Zaid said. “Their immunity from a criminal standpoint is fact specific to when the events took place and where. The Justice Department could go after them now or later if they are meeting with these people and there’s a potential conspiracy charge.”
Zaid continued: “It would be different from whether they were on the floor of the House [on Jan. 6] for example, or inside of the House chambers egging on folks outside saying things like, ‘Yes you should all come in’ or ‘Hang Mike Pence’ or ‘This is an illegitimate election, you need to take over.’”
Again, those lawmakers may not be criminally prosecuted for those actions or statements if they were made inside the Capitol’s confines.
But in terms of having lawmakers thrown off committees—or moreover, expelled—the Ethics Committee does have the power to trigger a significant sequence of events.
David Laufman knows that sequence well. Now a partner at the Washington, D.C., law firm of Wiggin and Dana, he previously served as investigative counsel to the House Ethics Committee from 1996 to 2000.
He explained in an interview this week that the committee can be prompted by any number of factors including but not limited to a particularly damning or notable piece of investigative journalism, which can serve as a catalyst to initiate a probe into a sitting House member’s conduct.
Under the committee’s rules, a provision known as Rule 18 states that an investigation into a lawmaker can be launched not withstanding whether a complaint is filed by a member of the committee.
Further, the probe can consider “any information in its possession indicating that a member, officer, or employee may have committed a violation of the Code of Official Conduct or any law, rule, regulation, or other standard of conduct” applicable to them in the discharge of their official duties.
“There’s other ways matters can be brought to the committee for investigative action. The rules require in other instances that a member of the House must file a complaint,” he said. “It has to be in writing, allege violation of House rules or federal law or other laws and in that instance, it has to be filed by a House member.”
According to the Office of Congressional Ethics, the Ethics Committee “accepts complaints about members only from other members,” but a member of the public can flag a concern formally to the office, which will pass it on to the committee after vetting.
A spokesperson for the OCE clarified further, telling Daily Kos there are three ways the House can accept complaints: 1) from a member of Congress, 2) from a non-member of Congress if the complaint is accompanied by an endorsement from a member of Congress and 3) from a referral submitted by the Office of Congressional Ethics.
“If something is filed by someone who isn’t a member of the House, then a member of the House has to certify in writing that he or she believes the information submitted in the complaint is submitted in good faith and warrants review and consideration of the committee,” Laufman explained. “And then, procedurally from a jurisdictional standpoint, the committee can take up whether to open an investigation of the member whose conduct is at issue.”
The committee can engage in what Laufman described as “comprehensive fact gathering” and utilize its authority to issue subpoenas to compel the production of documents.
“Members under investigation by the House Committee on Ethics can certainly exercise their constitutional right against self-incrimination but they can’t claim privileges like the Speech and Debate clause like they could in a criminal case, perhaps,” he said. “In some ways, the Ethics Committee has some greater powers to obtain the relevant facts than a criminal prosecution could and certainly, if the member did not invoke their Fifth Amendment rights although that would protect them from providing documents to that committee.”
But starting an investigation under the committee’s purview would require a vote, and the House Ethics Committee is the only one in Congress perfectly split between five Democrats—Chairman Ted Deutch of Florida, Susan Wild of Pennsylvania, Dean Phillips of Minnesota, Veronica Escobar of Texas, and Mondaire Jones of New York—and five Republicans.
The Republican members are Reps. Jackie Walorski of Indiana—the ranking member—Kelly Armstrong of North Dakota, David Joyce of Ohio, Michael Guest of Mississippi, and John Rutherford of Florida.
Of those Republicans, only Armstrong and Joyce did not object to the counting of electoral results. All, however, voted against impeaching Trump. Twice.
If just one Republican broke rank to create a majority for action, Ethics could move ahead and form an investigative subcommittee to scrutinize the information. After a full investigation, that investigative subcommittee could issue something known as a “statement of alleged violation” if it determined—again, by a majority vote—that a member violated House rules, laws, or other applicable standards of conduct.
"Think of it as akin to indictment by a grand jury in the context of a House Ethics investigation. Then the matter proceeds to another phase where an adjudicatory subcommittee would be established—also equally divided—and it would be charged with evaluating the guilt or innocence of a member; think of that like a jury in a trial,” Laufman said.
Then, if through “clear and convincing evidence” it’s proven that the member committed a violation, liability would be established.
From there, members have due process rights, can provide exculpatory evidence, and can engage with the committee.
Evidence can be tantalizing all day long, but it must also be convincing before any real penalty kicks in. And once a violation is established, then the options for accountability open wide.
That could come by way of a “letter of reproval” without having to obtain a vote in the House. It would essentially admonish the member for the conduct. Or if the violation is deemed more serious, the committee can vote to issue a reprimand. Only 11 House lawmakers have been reprimanded since that process began in the 1960s, but the full House must vote to approve it.
If the violations are starker still, like, say, orchestrating an insurrection on the taxpayer’s dime, lawmakers can vote to censure that member or expel them.
The last lawmaker censured was Charlie Rangel for a mélange of abuses, like misuse of congressional letterhead for fundraising, impermissible use of a rent-controlled facility for campaign headquarters, and inaccurate financial reports and federal tax returns.
Though many eyes may understandably glaze over at the undeniable wonkiness of the process involved, greater public understanding of these options is what keeps accountability—and more importantly, upward pressure—in play.
“And by the way, the House Ethics Committee is the only committee that really has the constitutional foundation to impose discipline on members because the Constitution expressly prescribes that each body may prescribe rules for disciplining their members. No standing committee in the House has authority like that so there’s a strong constitutional foundation for House or Senate ethics committees to discipline members found in violation of rules of their body or laws,” Laufman emphasized.
Members like Gosar, Brooks, Cawthorn, Biggs, Boebert, Gohmert, and Greene may have in some way known what the consequences of their alleged actions might be. And the motivation to plow ahead reportedly came with a promise of a blanket pardon.
But as Laufman noted, that would only protect them from criminal prosecution and would have “no bearing at all” on the jurisdiction of the House Ethics Committee to sanction them for their conduct if found in violation of House rules.
“So, you know, there’s different processes playing out. We have criminal prosecutions at the DOJ taking place, many of which have resolved. Those are really focused on specific conduct of individuals like cases having to do with trespassing and penetrating the Capitol, assaults on officers, obstruction of Congress, and things of that sort,” Laufman said. “The conduct alleged here has more to do with the alleged participation of members in efforts to subvert the will of the voters. That’s kind of at the root of this. Assuming there isn’t demonstrable evidence that people were conspiring to violate the law or engage in acts of violence themselves.”
Laufman said he was “puzzled” as to why “not even a single Democratic member” has taken the step of filing a complaint with the Ethics committee to underscore the seriousness of what happened on Jan. 6.
Doing so would, at least, enable House Ethics to be put in the position of having to decide whether to begin an investigation.
“Typically, the complaints are followed by a press release, and it is not a secret that the complaint has been launched. Then the pressure would mount on House Ethics Committee to do something, or it would become painfully obviously there was some political impediment to the committee doing something.”
A spokesperson for the House Ethics Committee declined to comment.
Rep. Eric Swalwell, a California Democrat, said in a phone interview Wednesday he believes exploration of the allegations at the center of the Rolling Stone piece should remain under the purview of the Jan. 6 Committee for now.
“And if member conduct is invoked in their findings, then absolutely it is better for the sake of the public because ethics investigations are largely secret. For the sake of transparency, this should go through the Jan. 6 Committee so the public can know just what happened,” he said.
Despite the rancor in Congress, Swalwell said he remains hopeful that if a complaint was brought to the Ethics Committee, at least one of the five Republicans on that panel would cross the aisle to explore claims of potential rule-breaking by a fellow member.
“That’s their job. Their job is not to be partisan but to look at the facts as it relates to the rule,” he said before underlining the opportunity the Jan. 6 Committee still has before it to secure accountability for a violent insurrection.
“That way the public can also judge this, and we can all know whether there was misconduct and then judge whether the Ethics Committee should or should not take action,” he said.
If at the end of the day the ethics body conducted a probe and was able to confirm findings that lawmakers did engage in the organizing or planning to overturn the electoral results, Swalwell was adamant that reproval, reprimand, or censure would simply not be enough.
“If anyone worked with violent insurrectionists, they have lost the right to be in Congress and they should be removed,” Swalwell said.
Laufman said credit would be due to the select Jan. 6 committee “if it is in fact taking an aggressive look at the conduct of House members pertaining to the insurrection.”
“That’s exactly what it should be doing. But it remains to be seen just how aggressive the Select Committee is willing to be—will it issue testimonial subpoenas to House members?—and how much public visibility there will be regarding such factfinding?” Laufman asked. “And in the end, the only real accountability for culpable House members—unless they committed criminal offenses—will lie with the House Ethics Committee, which alone has the authority to discipline House members who have violated House Rules or applicable laws.”