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House Homeland Security Committee member Rep. Scott Perry, R-Pa., arrives on Capitol Hill in Washington, Tuesday, Nov. 17, 2015, for a joint hearing of the Senate-House Homeland Security subcommittees on the Secret Service. (AP Photo/Jacquelyn Martin) House Homeland Security Committee member Rep. Scott Perry, R-Pa., arrives on Capitol Hill in Washington, Tuesday, Nov. 17, 2015, for a joint hearing of the Senate-House Homeland Security subcommittees on the Secret Service. (AP Photo/Jacquelyn Martin)

House Homeland Security Committee member Rep. Scott Perry, R-Pa., arrives on Capitol Hill in Washington, Tuesday, Nov. 17, 2015, for a joint hearing of the Senate-House Homeland Security subcommittees on the Secret Service. (AP Photo/Jacquelyn Martin)

Jessica Calefati
By Jessica Calefati January 31, 2021

If Your Time is short

Section 3 bars public officials who swear an oath to the Constitution and who have “engaged in insurrection or rebellion” against the United States” or “given aid or comfort to the enemies thereof” from holding public office. 

Congress enforced Section 3 a handful of times during Reconstruction by refusing to seat elected members who had ties to the Confederacy, and once during World War I, when one member-elect was convicted under the Espionage Act, although the conviction was later reversed on appeal.

Pennsylvania Attorney General Josh Shapiro suggested U.S. Rep. Scott Perry (R., Pa.) had run afoul of Section 3. Four constitutional law experts we interviewed said Perry’s behavior — which they called reprehensible, and even dangerous — does not violate the provision. 

 

When the New York Times reported that Rep. Scott Perry (R., Pa.) was connected to a failed plot to overturn Georgia’s presidential election results, Pennsylvania Attorney General Josh Shapiro suggested Perry had run afoul of an obscure section of the Constitution.

"Rep. Perry ought to familiarize himself with Section 3 of the 14th Amendment of our Constitution," Shapiro tweeted on Jan. 23. "There must be consequences for this conduct."

Perry has confirmed the Times report that he introduced then-President Donald Trump to a sympathetic Justice Department lawyer, Jeffrey Clark, who hatched a plan to oust department leadership and use the weight of the country’s top law enforcement agency to invalidate Georgia’s Electoral College results. It’s unclear how much Perry was involved other than connecting Trump and Clark. The plan never came to fruition.

We wondered, What does Section 3 say? And could Perry have any legal exposure because of it?

Here’s what you need to know:

What is Section 3 of the 14th Amendment?

Section 3 bars public officials who swear an oath to the Constitution and who have "engaged in insurrection or rebellion" against the United States or "given aid or comfort to the enemies thereof" from holding public office.

Drafted after the Civil War, Section 3 was designed to block an armed rebellion against the government. In the years since, the provision has hardly been used. Mark Graber, a University of Maryland law professor, called it "the most forgotten provision" of the 14th Amendment, which guarantees citizenship to those born in the United States and equal protection under the law.

Congress enforced Section 3 a handful of times during Reconstruction by refusing to seat elected members who had ties to the Confederacy, and once during World War I, when one member-elect was convicted under the Espionage Act, although the conviction was later reversed on appeal.

Did Perry violate Section 3?

Probably not.

The Times reported that Clark pressured acting U.S. Attorney General Jeffrey Rosen to send a letter to Georgia lawmakers informing them of an investigation into voter fraud that could invalidate the state’s Electoral College results. When Rosen refused to send the letter, the Times said, Clark attempted to replace him at the president’s urging. The plot eventually unraveled. There is no evidence of any widespread fraud in the presidential election.

In a statement, Perry acknowledged he brokered the first meeting between Trump and Clark and defended his effort to call for an investigation into baseless allegations of voter fraud.

"My conversations with the President or the Assistant Attorney General, as they have been with all whom I’ve engaged following the election, were a reiteration of the many concerns about the integrity of our elections, and that those allegations should at least be investigated to ease the minds of the voters that they had, indeed, participated in a free and fair election," he said.

It’s unclear if Perry has any other connection to the plot. Perry, a York County Republican and Iraq War veteran, is a staunch Trump ally who has echoed his false claims of a stolen election. He defended Trump during the president’s first impeachment trial, attended "Stop the Steal" rallies after the election, and objected to the certification of Pennsylvania’s Electoral College results.

Four constitutional-law experts we interviewed said Perry’s behavior — which they called reprehensible, and even dangerous — does not violate Section 3.

"It’s a stretch to describe what he is alleged to have done as engaging in insurrection against the United States," said Kermit Roosevelt, a professor at the University of Pennsylvania Carey School of Law. "Frivolous, bad faith arguments deserve a sanction, sure, but that’s not insurrection."

Shapiro’s office didn’t elaborate when asked to explain why he believes Section 3 applies in Perry’s case.

What happens next?

The Justice Department’s Office of the Inspector General and the Senate Judiciary Committee’s new chairman are both investigating the alleged scheme and experts say they may consider whether Perry’s conduct violated Section 3. Ultimately though, it would be up to Perry’s colleagues in the House to determine any punishment.

In response to the deadly insurrection at the Capitol and the role Trump and other elected officials played inciting it, Rep. Steve Cohen (D., Tenn.) is crafting legislation that seeks to resolve open questions about how to implement Section 3. Such legislation is probably necessary, Graber said, because the provision hasn’t been applied at all in more than a century.

"We need to understand we’re in totally uncharted waters," he added.

If investigators and members of Congress ultimately conclude that Perry did not violate Section 3, the House could still reprimand, censure, or expel him. Expulsion, however, is exceedingly rare.

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