The most striking thing about Monday’s final public meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol was what wasn’t said.
That silence spoke historical volumes.
Yes, the committee hit the mark in its assessment that former President Donald J. Trump’s scheme to reject and overturn the 2020 election results — with the help of armed mobs, right-wing extremists, rogue attorneys, and others — was not only antidemocratic but also likely criminal.
And equally important is the objective stated plainly by the committee’s Vice Chair, Rep. Liz Cheney (R-Wy.): “No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again. He is unfit for any office.”
But it’s what the members of the committee overlooked in its last public presentation despite their laser focus on Trump’s culpability that may keep him from being held accountable. And like many things involving the history, laws, and founding principles of our nation, it has everything to do with race.
Cheney, of course, is not the first official to recognize the importance of prohibiting those who have used their position to attack our nation’s democracy from ever ascending to power again. The 14th Amendment includes an explicit ban on any federal officeholder who previously took an oath to support the U.S. Constitution from holding office again if they “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
That post-Civil War language was drafted specifically to prevent former Confederate officials from holding elected office. The teeth to enforce that provision came with the passage of the Ku Klux Klan Act of 1870, a law designed to stop the reign of terror against Black people through force, intimidation, and violence. It was one of the vitally important legal provisions that rung in the era of Reconstruction, the crucial effort to rebuild a nation torn apart by a war over slavery and enfranchise Black Americans with the rights to vote, run for office, have access to education, use public accommodations, own land, gain employment, and more.
That effort was short-lived.
The pushback against Reconstruction, driven by Southern White citizens who openly expressed the view that Black people were unfit to occupy such spaces in American society, led to Jim Crow and the entrenchment of the kind of institutional racism that still exists today.
Backlash quickly took the teeth out of the Klan Act. With a vote of more than two-thirds of Congress, the Amnesty Act allowed those who fought for and defended the Confederacy to hold office again – and could now allow Trump to do the same.
The committee also left unanswered questions about how the Disqualification Clause operates today. Does it even work anymore? And if so, how? Is conviction of the crime of inciting an insurrection – which expressly includes the penalty of being banned from holding federal office – required?
Legal minds differ. So, frankly, it is shameful that the committee didn’t even address these important questions Monday.
Part of the committee’s charge was to recommend ways to ensure Jan. 6 never happens again, and evaluate all the factors that led up to it – including the role extremism played. Trump told a White nationalist organization to “stand by” during a presidential debate, then summoned the mob to Washington, D.C., after he lost the election, and the group’s members heeded his call. This is exactly what the drafters of the 14th Amendment and the Ku Klux Klan Act sought to guard against.
The very same Confederate flags that waved in opposition to Reconstruction efforts then were unfurled during an insurrection less than two years ago. The very votes contested that day were from places where the turnout of Black and Brown people made the difference: Detroit; Milwaukee; Philadelphia, and; Atlanta. Racial slurs were hurled at U.S. Capitol Police officers. And the insignias of White nationalist groups were proudly displayed on many of the rioters’ clothing.
Jan. 6 was about a lot of things, but importantly, it was about race in America. Yet, in that last meeting summing up the stakes, the committee missed that fact entirely. That leaves in place all the ingredients for history to repeat. Again. And again.