As historian Michael Beschloss and others have noted, the legal basis is clear, dating back to the post-Civil War amendment ratified during Reconstruction in 1868. Amendment XIV Section 3 states definitively that "no person shall hold any office" if as a member of Congress they "shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof."
It's never good news to get caught helping out in a civil war when you're holding a job with qualifications that read "hasn't helped out in a civil war."
Well, that's what Hawley and Cruz just did: The organized insurrectionists incited and directed by Donald Trump to attack the Capitol were doing so in the name of a borderless civil war. (The fact that Trump continues to shun any expression of sympathy for fallen Capitol police officers confirms he regards them as enemy casualties).
Not long after these heavily armed insurrectionists stormed the U.S. Capitol for the expressed purpose of preventing Congress' certification of the 2020 election -- keyword, "after" -- Hawley moved to give their seditious cause "aid and comfort" by challenging the election results of the Commonwealth of Pennsylvania. Cruz had done the same before the insurrection with respect to the state of Arizona.
Both were among senators who voted to reject Pennsylvania's electors. If you're looking for clues as to why the whole enterprise might have been not-so-kosher by this point in time, Hawley yielded his five minutes of time, his first shunning of a microphone or camera in 41 years on the planet. Hawley knew who he was helping and why and wasn't about to add to the record.
But while the conduct of Hawley and Cruz affronted the Constitution's language, the remedy is purely political. That, too, lies in the Constitution: Article 1 Section reserves solely to each chamber of Congress the power to "determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."
So it comes down to this: Would 17 Republicans join 50 Democrats and independents in taking a patriotic stand against the sedition of Hawley and Cruz?
For the blue team, it's not a tough vote, because January 6 will forever remain on a shortlist of tragic days in American history. Doing nothing shouldn't be an option with regard to members of Congress who actively abetted it.
For both parties, however, almost all political questions come down to three criteria: 1) Is this in our political self-interest?' 2) Is this in our political self-interest, and 3) Is this in our political self-interest?
Normally, that would be that -- as it was during Trump's impeachment -- and the prospect of finding 17 Republicans to vote against him would be impossible. That might remain the case here. But the big problem for Hawley and Cruz is that this wasn't just any domestic terrorist event: It was one that jeopardized the lives of all members of Congress and their staffs, across party lines. Many found themselves quaking under desks making farewell calls to loved ones. And lots of stuff got messed up.
Let's not mince words: They are pissed off and are likely to stay pissed off at Trump and anyone who gave him and his terrorist minions an iota of aid and comfort, especially after the attack occurred. This one literally hit home to them.
This brings us back to the politics. What would be the consequence, in terms of angering the Trump base, to punishing Hawley and Cruz for supporting his cause? And even if Hawley and Cruz can wrap themselves in MAGA flags now, will that matter two or four years from now? Further, would a defanged and de-platformed Trump himself matter by then, especially if he's off making license plates somewhere?
Unhelpful to both senators are the low esteem with which they are held by colleagues, even on their own side of the aisle. Cruz has long held the "most hated man in the Senate" without much competition, pretty much by acclamation. Compare him to a snake and the reptile lobby will go nuts on you.
Hawley might not quite be living on Cruz Island, but he's not far from it.
Consider this from the New York Times Friday:
"The day after Josh Hawley became the first Republican senator to say he would indulge President Trump's demand that lawmakers try to overturn the election, a reporter asked if he thought the gambit would make him unpopular with his colleagues."
"'More than I already am?' he retorted."
Such a lovable guy. But getting back to the original question about political self-interest, there's a factor that weighs against Hawley more than Cruz: Removing him would mean replacing him, with near certainty, with another Republican. And it would probably do a favor to Senator Roy Blunt, a highly regarded member of the party's Senate leadership, who has potential primary concerns of his own as he faces reelection in 2022.
Missouri is one of the Trumpiest states in America, having favored him by 15 percentage points this year and 19 percent in the 2016 election. Were Hawley ejected from the Senate, his replacement would be chosen by Republican Governor Mike Parson--one of the most pro-Trump governors in the nation -- and that person who would stand for a special election alongside Blunt in 2022.
Missouri in 2022 would host a rare dual-senator election like Georgia did in 2020, but with a far higher likelihood of success for the Republicans. Blunt would benefit from running alongside a teammate. Parson would benefit because he could break a logjam of statewide Republican officeholders looking for higher office, including his (Parson is term-limited out in 2024). Hawley has been disowned by his erstwhile patron saint, former Senator Jack Danforth, and two of the state's most influential and wealthy GOP political donors.
So the Republican Party writ large would be glad to be rid of Hawley, who is almost certainly damaged goods for the long term. Even if the party decides it needs a Trump acolyte to carry its banner in 2024, there's a long list of people with last names like Trump, Pompeo, and Haley standing ahead of him in that regard.
For Cruz, the politics are a bit foggier. Unlike Hawley, he has been around quite a while and has more of a natural base of his own. But far more important, Texas is growing more purple by the day. The Republican Party runs a real risk of losing a seat if it jettisons Cruz as it would open the possibility of a Democrat winning the seat in 2022. Cruz isn't up until 2024.
Plus, Cruz didn't inadvertently pose for an iconic fist-pump-to-the-seditionists photo like Hawley did on his way to the Capitol. (That one will help every bit as much smiling from a tank helped not-President Michael Dukakis in 1988.) And Cruz isn't continuing to act in as bellicose a fashion as Hawley, who is continuing to spout "I will never apologize!" and claiming ludicrously that Simon and Schuster abridged his First Amendment rights by dumping his book deal.
Still, Cruz did offer aid and comfort to Donald Trump's cause and, by implication, his little army. And given that so much champagne would flow so freely among so many senators across the aisle were Cruz kicked to the curb, it cannot be ruled out that they'd gleefully kick him to the curb over sedition.
Now if you're thinking none of this could possibly be real, look no further back than a quarter of a century, when longtime Senator Bob Packwood of Oregon was facing expulsion. Over a period of a few years, a sordid history had emerged of Packwood having sexually harassed female aides and other women. Plus he had altered diaries to cover it up.
Packwood resigned in disgrace in 1995, but only after the Senate Ethics Committee voted unanimously -- under Chairman Mitch McConnell, of all people -- to have him expelled from the Senate. Kicking out a senator hasn't happened often, but it's not out of the question.
Long before the Me Too movement, Republican senators were ready to boot a senator for sexually harassing people in the Capitol building. So might they do the same for a senator who offered aid and comfort for people who stormed that very building with guns blazing?
We'll all have to wait on the edge of our seats to learn the answer to that one. You can rest assured that Josh Hawley and Ted Cruz are.
