The House select committee investigating the January 6, 2021 attack on the United States Capitol is focusing on the criminality of former President Donald Trump, but there are a lot more criminals currently serving in elected positions, especially in the House of Representatives. Despite Republican efforts to discredit the hearing, conspiring to overturn the 2020 Presidential election was an act of treason, not an exercise in free speech. These eleven Republican members of members of Congress, Scott Perry (Pennsylvania), Jim Jordan (Ohio), Andy Biggs, Paul Gosar and Debbie Lesko (Arizona), Mo Brooks (Alabama), Matt Gaetz (Florida), Jody Hice and Marjorie Taylor Greene (Georgia), Louie Gohmert (Texas), Lauren Boebert (Colorado), and other members of the right-wing House Freedom Caucus, should be indicted, arrested, tried, and if convicted, sentenced to long jail terms and declared ineligible to ever hold elective office again.
To prevent Joseph Biden from taking office on January 20, 2021, the Evil Eleven initiated or joined baseless lawsuits, promoted lies that widespread fraud invalidated the election, and voted in Congress to refuse to certify the result. Baseless lawsuits, lying to constituents, and outrageous votes do not constitute treason, they just demonstrate a contemptible effort to overturn democracy. But in secret meetings these Congressional Representatives encouraged Donald Trump to declare martial law and suspend Constitutional protections and they encouraged Trump supporters to storm and invade the Capitol building. These are criminal offenses.
According to Section 3 of the 14th Amendment to the United States Constitution, in effect since 1868, “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.”
Each member of the House of Representatives, and each of the Evil Eleven took an oath of office that they violated. “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
The Evil Eleven, like every other American, has the right to expound on what Senate minority leader Mitch McConnell (R-KY) has called “loony lies and conspiracy theories.” But as a member of Congress who swore an oath to “defend the Constitution of the United States,” they had a responsibility to support the vote of the American people and the laws of the United States and an obligation to reject the demands of the January 6 insurrectionists.
Colloquially, treason is the crime of betraying one’s country by attempting to kill political leaders or overthrow the government.” However, treason is narrowly defined in the United States Constitution and has been interpreted even more narrowly by the Supreme Court so it is difficult to prove. There are other legal options to charging the Evil Eleven with treason, including the RICO statues.
Article III, Section 3, Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.
In the case Ex parte Bollman (1807), United States Supreme Court Chief Justice John Marshall, argued that “levying war” against the United States meant actually waging of war and that no matter how egregious an act, it did not constitute treason unless it included conspiring to subvert by force the government of the United States. However, Marshall added that this did not mean a person was not guilty of treason crime just because they did not physically participate in the treasonable act. According to Marshall, “all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
Haupt v. United States (1947) was the first time in the modern era that the Supreme Court affirmed a treason conviction when Hans Max Haupt hid his son, an enemy spy and saboteur, purchased a car for him, and helped him secure a job in a defense plant during World War II.
RICO, the Racketeer Influenced and Corrupt Organizations Act (1970) offers another way to bring the Evil Eleven to justice. It is a federal law that outlines criminal penalties for acts performed as part of an ongoing criminal organization, in this case the network of January 6 insurrectionists and the House Freedom Caucus. Prosecutors would have to demonstrate that an “enterprise” existed, it affected interstate commerce, the defendants are associated with the enterprise, they engaged in a pattern of racketeering activity, and they committed at least two of the acts included in the indictment. Prosecutors would not have rove the defendants had full knowledge of all the details of the conspiracy.
None of this is likely to happen, but it could, and it should.
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