Herring issues advisory opinion on discipline, expulsion of legislators involved in Capitol attack

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RICHMOND, Va. (WAVY) – In response to a question about legislator participation during the attack at the Capitol, Attorney General Mark Herring issued an advisory opinion saying the legislature has the authority to “discipline or expel its members.” 

“The January 6 attack on our Capitol was an affront to our democracy and the very foundations of our country. 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,” Herring said.

“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, Herring details the events of January 6, 2021, saying that President Donald J. Trump and others encouraged the people there to “‘fight’ to ‘take back’ the country, including ‘walk[ing] down Pennsylvania Avenue.’”

Shortly after, the mob stormed the Capitol building to attempt to block Congress from certifying the November 2020 election results.

“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.”

In the attack, five people were killed and many people were injured.

Herring says that at least one member of the General Assembly is alleged to have been involved in the events in some way.

He adds 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.”

Herring explains that the General Assembly also determines what kind of conduct warrants discipline or expulsion.

“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.’”

In closing, Herring says, “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.’”

Read the full advisory opinion here.

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