On Cruz and Hawley

A group of seven Senate Democrats filed an ethics complaint against Republican Sens. Ted Cruz and Josh Hawley last week over their decision to object to the Jan. 6 certification of election results, claiming that making such an objection amidst violent threats “lent legitimacy to the mob’s cause and made future violence more likely.” Hawley and Cruz had objected to certifying the results in both Pennsylvania and Arizona.

In their letter to Senate Ethics Committee Chairman Chris Coons (D-Del.) and Vice Chairman James Lankford (R-Okla.), Sen. Sheldon Whitehouse (D-R.I.) and his six Democratic colleagues requested an investigation into the nature and extent of Cruz and Hawley’s involvement in the Jan. 6 insurrection, arguing that they may have violated the Code of Ethics for Government Service, which requires elected officials to “[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.”

Should an investigation uncover any wrongdoing, Cruz and Hawley face possible expulsion, which would require a two-thirds vote, or censure, which simply requires a majority.

The Case for Expulsion

As documented in their letter, Democrats note that threats against state and local election officials and voting machine companies were well-publicized and that Republican officials had publicly warned that false claims of election fraud were “inspiring people to commit potential acts of violence.” Instead of heeding these warnings, however, Hawley stoked the flames by announcing his intent to object and by tweeting that it was “time to STAND UP.”

On Jan. 6, as protesters began to gather outside the Capitol, Hawley raised his fist to them in solidarity before proceeding inside, where he and Cruz signed written objections to certification. And while numerous senators (Sens. Loeffler, Lankford, Braun, Johnson, Daines, Blackburn, and Hagerty) thought better of these efforts in the wake of the Capitol attack, changing course and deciding not to follow through on their previous plans to challenge, Hawley and Cruz pressed on, regardless. Sending fundraising text messages/emails before, during, and after the insurrection, both Hawley and Cruz attempted to capitalize on these false claims of fraud, with little regard for the resulting impact.

Citing Article I of the Constitution and the Senate Ethics Manual, Democrats argue that the Senate not only has the power to but has previously decided to discipline members for conduct deemed to be unethical, improper, or disorderly, regardless of whether it violated any written law or Senate rule or regulation.

And as stated in their letter, “Both senators announced their intention to object to the electors after baseless claims of election fraud, which upon information and belief they knew to be baseless, had led to threats of violence. Both senators persisted in their objections after those threats came to fruition. Their actions lend credence to the insurrectionists’ cause and set the stage for future violence.”

Sen. Tina Smith (D-Minn.) concluded in a tweet, “Sens. Cruz and Hawley deserve a fair process and a chance to explain themselves and their role in the January 6 Capitol siege. But unless we learn something new, based on what we’ve seen so far, I don’t believe they deserve to remain in the Senate.”

The Case Against Expulsion

While Congress has the power to expel members under Article I of the Constitution, which states, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member,” expulsion has historically been used in only the most severe of cases.

Indeed, the last time that Congress expelled a member of the Senate was in 1862, and only 15 in total have been expelled since 1780—all but one of them for actively supporting and pledging allegiance to the Confederacy during the Civil War.

And even support for Confederate rebellion wasn’t always seen as sufficient cause, as attempts to expel Sen. Lazarus Powell for being unsuitably sympathetic ultimately failed.

And the truth is, the conduct at issue here—namely, objections to certification—is relatively commonplace. In 2016, for example, seven House Democrats objected to certifying the results of various states—from Alabama to Florida to Georgia to North Carolina to South Carolina to Wisconsin to Mississippi to Michigan to Wyoming. None of these objections were formally considered, of course, because none were cosigned by a senator, and thus, they received little fanfare in the media. But they happened, for a multitude of reasons ranging from voter suppression to Russian interference to malfunctioning voting machines.

With that historical backdrop as a frame of reference, it is hard to imagine that a mere objection to certification would rise to the level of conduct necessary to expel a sitting senator.

Our Verdict

As mentioned above, Sen. Tina Smith stated that, as a result of their actions, neither Sens. Cruz nor Hawley deserve to remain in the Senate.

We agree.

We believe, however, that, given historical precedent, the appropriate mechanism for removal is at the ballot box, as we do not believe that their conduct—as we presently know it—rises to a level that would justify exercising a power that has not been invoked since the 19th century.

Now, this could change if an investigation were to reveal that they gave aid or comfort to those who stormed the Capitol in an act of sedition and insurrection. But their actions as we currently understand them do not amount to aid or comfort, in our view. Yes, they acted irresponsibly and placed their self-interest above the interests of our nation, and for that reason, we believe that they violated the Code of Ethics for Government Service. But we believe that the appropriate punishment, in this instance, would be censure and a resounding defeat at the polls.

For we believe that it is imperative to be guided by precedent, and we believe that the available precedent aligns more closely with censure, no matter how gratifying expulsion may be.

The full complaint can be read below:

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