Tennessee and Jan. 6: Behind Republicans' brazen hypocrisy, an important lesson

Earlier this month, in a brazen assault on democracy and blatant display of racism, the Tennessee state legislature expelled two Black members, Rep. Justin Pearson and Rep. Justin Jones, for halting legislative proceedings in a nonviolent protest for gun control legislation. Cameron Sexton, the Republican speaker of the Tennessee House, who led this farce, called the peaceful protest "an insurrection in the State Capitol" that was "at least equivalent, maybe worse" than the Jan. 6, 2021, insurrection. The comparison is comically false while also highlighting a cruel irony: In the two years since the violent attack on the Capitol, not a single state legislator involved in that actual attempt to upend our democracy has been expelled or barred from office. Reversing that trend should begin with state legislators who participated on Jan. 6 and continue with other officials, including Donald Trump.

Contrary to Sexton's claims, the expelled Tennessee representatives did not engage in an "insurrection." After another horrific school shooting in Nashville, the representatives joined thousands of students and parents in a peaceful protest calling for gun reforms. Unlike on Jan. 6, the representatives did not aid protesters in violently attacking law enforcement in order to break into the Capitol and delay the peaceful transfer of power. Reps. Jones and Pearson spoke on the House floor using bullhorns while they were not recognized to speak, which violated the chamber's "rules of order." Both members were selected to return to the chamber by their communities. Before last week, only two Tennessee House members had been expelled since Reconstruction, one based on sexual misconduct allegations and another for accepting bribes. Unlike the bipartisan majorities that voted in Donald Trump's House impeachment and Senate trial that he had incited an insurrection, the Tennessee representatives' "unprecedented" expulsions were along strictly partisan lines.

My organization, Citizens for Responsibility and Ethics in Washington (CREW), has identified several newly elected or sitting state legislators who should be investigated for their roles in the attack on the Capitol and potentially disqualified from office. A CREW report released this week documents how Pennsylvania State Sen. Doug Mastriano helped mobilize and incite the mob ahead of Jan. 6, including by using campaign funds to charter buses transporting Trump supporters to Washington to "Stop the Steal." He also played a pivotal role in the fake elector scheme, which the House Jan. 6 committee concluded "led directly to the violence" that day, and joined the mob within the restricted area of the Capitol grounds before ultimately leaving. To date, none of these legislators have been blocked or expelled. The Tennessee legislature's expulsions of Reps. Pearson and Jones and cries of "insurrection" confirm what we already know: Bad-faith actors will abuse the rules to undermine democratic institutions and make false equivalencies to defend their actions. That reality cannot deter lawfully pursuing accountability for the Jan. 6 insurrection in courtrooms and legislatures across the country. 

Last year, three New Mexico residents, represented by CREW, won the first case in more than 150 years removing an elected official from office based on their participation in an insurrection. The court ruled that a New Mexico County Commissioner, Couy Griffin, violated Section Three of the 14th Amendment to the Constitution, which bars any government officer who takes an oath to defend the Constitution and who then engages in an insurrection or aids one against the United States from ever holding office again. The court found that Griffin recruited rioters to attend Trump's "wild" effort to overturn the election, normalized violence and breached police barriers as part of a weaponized mob that allowed other insurrectionists to overwhelm law enforcement and breach the Capitol. Griffin's removal marked the first successful litigation at the federal or state level concluding that Jan. 6 was an insurrection.

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In Griffin's case, the court explicitly rejected attempts to conflate the attack on the Capitol with the rights to assembly and speech protected by the First Amendment. The court cited amicus briefs from legal scholars noting that disqualifying officials under Section Three of the 14th Amendment does not conflict with the First Amendment right to protest, and from the NAACP, outlining how federal judges have repeatedly rebuffed attempts by Jan. 6 defendants to compare their conduct to Black Lives Matter protests. The court also cited expert testimony explaining that while violence may be an unintended consequence in some protest movements, it is a key tactic in insurrection. While it's clear that such guardrails will not prevent anti-democratic efforts to punish legitimate protest, as occurred in Tennessee, pursuing accountability for those who engaged in or facilitated the insurrection on Jan. 6, 2021, by enforcing the 14th Amendment's "Disqualification Clause" — a recommendation endorsed by the bipartisan House select committee — is essential to restoring our democracy. As such, we must examine whether current and former government officials like Griffin, Mastriano, Trump and others are unfit to serve in the government they sought to overthrow. 

As Tennessee Rep. Justin Pearson said upon being expelled from office, "We can never normalize the ending of democracy." Enforcing the Constitution against insurrectionists is necessary to prevent the end of our democracy. Though some may wonder whether pursuing disqualification will lead to disingenuous efforts to turn the tables, we're clearly already there. Actual insurrectionists — like those who incited and supported the Jan. 6 attack — must be investigated and held accountable, including by being expelled from state legislatures and removed from ballots.