Section 3 of the 14th Amendment, a little-discussed provision originally aimed at former Confederates. As relevant here, Section 3 says "no person" may "hold any office, civil or military, under the United States," who, "having previously taken an oath as…an officer of the United States…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."
Before we process, it important to state and describe what the First Amendment say.
The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The freedoms in the First Amendment include the freedoms of religion, speech, press, assembly, and the right to petition the government.
Citing the article of impeachment against the President Trump;
Inciting his followers to violently obstruct the congressional affirmation of President-elect Joe Biden's victory last Wednesday. President Trump's "prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election,"
Those actions, the article says, "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government." Trump "thereby betrayed his trust as President, to the manifest injury of the people of the United States."
Most of President Trump supporters who were arrested among those that stormed the United States Congress stated that they were urged by what President Trump said calling on his supporters who showed up in D.C. to protest Congress’s certification of the Electoral College and Biden’s victory. When addressing the demonstration during a speech, he encouraged people present to march toward the Capitol, during his rally on January 6th to storm the US Congress therefore President Trump is liable to the cause of the insurrection. Many of the rioters were found to have posted unfounded claims promoted by Trump that the election had been stolen or that widespread voter fraud contributed to President-elect Joe Biden’s victory.
First, federal law makes it a crime to engage “in any rebellion or insurrection against the authority of the United States or the laws thereof.” Someone who violates this statute faces a fine and up to 10 years in prison.
This law makes it a crime to incite such a rebellion, too, and violators “shall be incapable of holding any office under the United States.” Thus, to the extent that a government official was complicit in Wednesday’s riot, they could potentially be stripped of their office.
Second, the law prohibits a “seditious conspiracy” to “overthrow, put down, or to destroy by force the Government of the United States” or to “by force to prevent, hinder, or delay the execution of any law of the United States.” Participants in such a conspiracy could face up to 20 years in prison.
Third, federal law provides that “whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States ... by force or violence” may face up to 20 years in prison, and may also be stripped of their ability to be employed by the federal government for up to five years.
Because this statute criminalizes speech, anyone charged under it would likely claim that prosecuting them violates the First Amendment. But the Supreme Court recognizes several exceptions to the First Amendment for things like incitement to imminent criminal acts or so-called “true threats.” So some of the insurrectionists might be convicted under this statute despite constitutional safeguards for free speech.
Finally, another statute makes it a crime to conspire “to injure, oppress, threaten, or intimidate any person ... in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Thus, to the extent that members of Congress were exercising a “privilege” secured to them by the Constitution while they were disrupted by rioters, those rioters could potentially face criminal charges.
Violators of this statute face up to 10 years in prison.
