|RICHMOND (January 22, 2021) – Attorney General Mark R. Herring has issued an advisory opinion confirming that “[e]ach body of the Virginia General Assembly possesses broad power to discipline and, where it judges appropriate, expel member legislators.” Attorney General Herring issued the opinion in response to a question about whether the General Assembly had the authority to discipline or expel legislators who may have contributed to the January 6th insurrection at the United States Capitol.
“The January 6th attack on our Capitol was an affront to our democracy and the very foundations of our country,” said Attorney General Herring. “It’s appalling that a Virginia legislator would have anything to do with that event, or with the baseless conspiracy theories and lies that fueled it. As I lay out in this opinion, the General Assembly has tools for holding its members to account if it determines that any legislator’s actions warrant discipline or expulsion.”
In the opinion, Attorney General Herring details the events of January 6, 2021 saying, “a rally was held near the White House, where President Donald J. Trump and others encouraged attendees to ‘fight’ to ‘take back’ the country, including ‘walk[ing] down Pennsylvania Avenue.’ Soon thereafter, a violent mob stormed the Capitol in an effort to block Congress from carrying out its constitutional duty to certify the results of the November 2020 presidential election. After overwhelming Capitol security, rioters rampaged through the building, searching for elected officials and vandalizing the seat of our democratically elected national government. Lawmakers had to be evacuated from the legislative chambers and sequestered at secure locations for much of the day until order was restored. Five people were killed (including one Capitol Police officer) and many more were injured.” Attorney General Herring adds that, according to the opinion request, “‘[a]t least one member of the General Assembly is alleged to have participated in the events’ of the day.”
Although there is some question about whether Section 3 of the Fourteenth Amendment needs further action by Congress to make it operational, Attorney General Herring nevertheless highlights that “[t]he General Assembly possesses authority to determine whether its members’ conduct warrants discipline or expulsion.” Adding that, “Article IV, Section 7 of the Constitution of Virginia provides that ‘[e]ach house’ of the General Assembly ‘may punish [its members] for disorderly behavior, and, with the concurrence of two-thirds of its elected membership, may expel a member.’ Whether to ‘punish’ or ‘expel’ a member is committed solely to the discretion of the relevant legislative body.”
Additionally, Attorney General Herring explains that the General Assembly also determines what kind of conduct warrants discipline or expulsion, saying “Article IV, Section 7 recognize[s] and confirm[s] legislative bodies’ authority over internal matters of member discipline and expulsion…[and] ‘the determination of what conduct justifies imposition of this severe sanction is to be made by the legislature itself.’”
Attorney General Herring concludes that “the Constitution of Virginia unequivocally grants plenary authority to each chamber of the General Assembly to discipline or expel its members…[and] the terms of Section 3 of the Fourteenth Amendment and related historical precedent confirm that expulsion may be an appropriate sanction if a member ‘shall have engaged in insurrection or rebellion against’ the United States Constitution or has ‘given aid or comfort to the enemies thereof.’”