Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

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maestrob
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Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

Post by maestrob » Fri Jan 21, 2022 10:04 am

Jan. 21, 2022
By Harry Litman

Mr. Litman is a former U.S. attorney and deputy assistant attorney general.

Representative Madison Cawthorn has breezily dismissed a candidacy challenge filed by voters in his home state, North Carolina, seeking to bar him from re-election to the House of Representatives based on his role in the events of Jan. 6.

The plaintiffs, a spokesman from the pro-Trump Republican’s office said, are “comically misinterpreting and twisting the 14th Amendment for political gain.”

Mr. Cawthorn is being too quick to scoff. The 14th Amendment provision in question, while little known and not employed since 1919, is a close fit for his conduct around Jan. 6 — as well as that of at least a half-dozen Republican colleagues whom the organization spearheading the challenge, Free Speech For People, suggests will be next.

Passed in the wake of the Civil War to prevent former rebels from serving in Congress, Section 3 of the 14th Amendment states: “No person shall be a Senator or Representative in Congress … who, having previously taken an oath, as a member of Congress … 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.”

The critical point to understand is that Section 3 added a qualification to hold office, one of the very few in the Constitution. The others are that members of the House must be at least 25, a U.S. citizen for seven years and live in the state the individual represents. It is no different in this respect from the qualification that the president be at least 35 and a natural-born citizen.

So, if the voter challenge succeeds in establishing that Mr. Cawthorn engaged in “insurrection or rebellion,” he would be as ineligible to serve in Congress as if it were revealed that he is 24 years old. Under North Carolina law, once challengers advance enough evidence to show reasonable suspicion that a candidate is not qualified, the burden shifts to the would-be candidate to demonstrate the contrary.

The North Carolina State Board of Elections will create a five-member panel composed of people from counties in the new district in which Mr. Cawthorn intends to run (which is more Republican leaning than his current one). The panel’s decision could be appealed to the entire State Board of Elections, and after that to the state’s court system. The board’s decision will be delayed until after a state court rules on a separate redistricting challenge in North Carolina. But the issue will have to be resolved in time for the state’s primary election, currently set for May, so the normal Trump playbook of stalling until the issue becomes moot is not an option.

The key question in the challenge will be whether Mr. Cawthorn’s acts of support for the Jan. 6 uprising rise to the level of engaging in an insurrection against the government.

Here is what the first-term congressman did, based on public reports and allegations in the challenge: In advance of the riot at the Capitol, he met with planners of the demonstrations and tweeted that “the future of this Republic hinges on the actions of a solitary few … It’s time to fight.” He spoke at the pre-attack rally at the Ellipse, near the White House, where he helped work the crowd into frenzy, saying the crowd had “some fight in it” and that the Democrats were trying to silence them. And in the aftermath of the mob violence, he extolled the rioters as “political hostages” and “political prisoners,” and suggested that if he knew where they were incarcerated, he would like to “bust them out.”

The constitutional term “insurrection” is less cut-and-dried than, say, whether a candidate is 25 years old. In other contexts, courts have defined it as a usually violent uprising by a group or movement acting for the purpose of overthrowing the legitimately constituted government and seizing its powers. That accurately describes the collective pro-Trump effort to undermine the certification of the November 2020 election.

In the hours after the riot, Mitch McConnell, then the Senate majority leader, described the attack as a “failed insurrection”; one of President Trump’s own lawyers in the impeachment trial stated that “everyone agrees” there was a “violent insurrection”; and Mr. Cawthorn himself voted for a resolution that described the attackers as “insurrectionists.” He’ll be hard pressed to run from that label now.

As for whether Mr. Cawthorn “engaged” in the insurrection, in an 1869 case, the North Carolina Supreme Court interpreted that term in Section 3 to signify “voluntarily aiding the rebellion, by personal service, or by contributions … of anything that was useful or necessary” to it. Even before more facts are developed in the case — including a possible deposition of Mr. Cawthorn — the tweet exhorting demonstrators to fight because the future of the Republic hinges on it seems plainly designed to aid the enterprise.

The indictment of Stewart Rhodes, the leader of the far-right Oath Keepers, and 10 other Jan. 6 participants on seditious conspiracy charges reinforces the notion that the crimes of Jan. 6 were not simply offenses of property or disorder but were attacks against the government itself, the same core idea as with insurrection.

If the North Carolina courts rule against him, expect Mr. Cawthorn to make a quick dash to the U.S. Supreme Court, arguing that it has final authority to interpret the federal constitutional term “insurrection.” At that point, a conservative majority that includes three justices appointed by Donald Trump might well sympathize with Mr. Cawthorn.

But while it may be rare, the North Carolina voter challenge is no joke. The challengers have a strong case, and Mr. Cawthorn would be foolish to take it lightly.

Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science. He is also host of the podcast Talking Feds.

https://www.nytimes.com/2022/01/21/opin ... thorn.html

barney
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Re: Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

Post by barney » Fri Jan 21, 2022 6:33 pm

What a delicious irony that would be, if Cawthorn's own idiocy ruled him out. The trouble is, the Republicans will find another candidate just as sleazy and anti-democratic. They have some 70 million to choose from (assuming they are willing to move to the state and are at least 25).

maestrob
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Re: Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

Post by maestrob » Sun Jan 23, 2022 9:06 am

barney wrote:
Fri Jan 21, 2022 6:33 pm
What a delicious irony that would be, if Cawthorn's own idiocy ruled him out. The trouble is, the Republicans will find another candidate just as sleazy and anti-democratic. They have some 70 million to choose from (assuming they are willing to move to the state and are at least 25).
Really!

The sleaze seems to run through the GOP (is that an oxymoron?) voting population these days, doesn't it?

QAnon, here we come! :roll:

maestrob
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Re: Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

Post by maestrob » Wed Jan 26, 2022 11:05 am

Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectionist’?

The challenge to Representative Madison Cawthorn’s re-election bid could set a precedent to challenge other Republicans who encouraged the Jan. 6 attack.


By Jonathan Weisman
Jan. 25, 2022

WASHINGTON — A group of lawyers is working to disqualify from the ballot a right-wing House Republican who cheered on the Jan. 6 rioters unless he can prove he is not an “insurrectionist,” disqualified by the Constitution from holding office, in a case with implications for other officeholders and potentially former President Donald J. Trump.

The novel challenge to the re-election bid of Representative Madison Cawthorn, one of the House’s brashest supporters of Mr. Trump and the lie that the 2020 election was stolen, could set a precedent to challenge other Republicans who swore to uphold the Constitution, then encouraged the attack.

While the House committee investigating the assault on the Capitol has so far been unsuccessful in its effort to force key members of Congress to cooperate with the inquiry, the North Carolina case has already prompted a legal discussion — one that is likely to land in court — about what constitutes an insurrection, and who is an insurrectionist.

And for the first time, a lawmaker who embraced the rioters may have to answer for his actions in a court of law.

“I don’t think we can have those persons who have engaged in acts of insurrection elected to office and serving in office in violation of their constitutional duties and oath,” said John R. Wallace, one of the lawyers on the case and a campaign finance and election law expert in Raleigh, N.C. He added, “It should not be difficult to prove you are not an insurrectionist. It only seems to be difficult for Madison Cawthorn.”

Cases challenging the legitimacy of a candidate before election boards usually hinge on a candidate’s age, legal residency, place of birth or citizenship status, or the legitimacy of signatures in a candidacy petition.

This case revolves around the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy who were streaming back to Washington to reclaim their elective offices — and infuriating unionist Republicans.

That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Mr. Cawthorn, 26, who is in his first term in Congress, has denounced the case as an egregious misreading of the 14th Amendment, but he has retained James Bopp Jr., one of the most prominent conservative campaign lawyers in the country, as counsel.

Mr. Bopp, in an interview, declared the matter “the most frivolous case I’ve ever seen,” but allowed that what he called an “unethical” exploitation of North Carolina law by “competent” lawyers could pose a real threat to Mr. Cawthorn — and by extension, to others labeled “insurrectionists” by liberal lawyers.

“This is the real threat to our democracy,” he said. “Just by bringing the complaint, they might jeopardize a member of Congress running for re-election.”

“They have multiple targets,” he added. “It just so happens that Madison Cawthorn is the tip of the spear.”

That is because North Carolina’s election statute offers challengers a remarkably low bar to question a candidate’s constitutional qualifications for office. Once someone establishes a “reasonable suspicion or belief” that a candidate is not qualified, the burden shifts to the officeseeker to prove otherwise.

If Mr. Cawthorn is labeled an “insurrectionist,” that could have broader ramifications. Other Republican House members, such as Marjorie Taylor Greene of Georgia, Mo Brooks of Alabama, Paul Gosar of Arizona, and Lauren Boebert of Colorado, face similar accusations, but their state’s election laws present higher hurdles for challenges to their candidate qualifications. If one of their colleagues is disqualified for his role in encouraging the rioters, those hurdles might become easier to clear.

The lawyers challenging Mr. Cawthorn’s eligibility are using an amendment last invoked in 1920, when Representative Victor L. Berger, an Austrian-American socialist, was denied his seat representing Wisconsin after criticizing American involvement in World War I.


If nothing else, the lawyers, including two former justices of the North Carolina Supreme Court, want to depose Mr. Cawthorn as part of discovery to question his actions before, during and after the attack on the Capitol.

“There is, of course, much that we don’t know, and the statute allows discovery by deposition and the production of records,” Mr. Wallace said.

There is much that is known. Whether it makes Mr. Cawthorn an “insurrectionist” would have to be determined by North Carolina’s Board of Elections, or more likely, by the state’s courts, where the board might punt the matter.

Weeks after the 2020 election, Mr. Cawthorn told a conservative gathering to “call your congressman” to protest the results, adding, “you can lightly threaten them.” He promoted the “Save America” rally behind the White House on Jan. 6, writing on Twitter, “the future of this Republic hinges on the actions of a solitary few,” then adding “It’s time to fight.” At the rally, he riled the crowd from the stage with talk of election “fraud.”

He later called those jailed for storming the Capitol “political hostages” and “political prisoners” that he would like to “bust” out of prison.


“The Second Amendment was not written so that we can go hunting or shoot sporting clays. The Second Amendment was written so that we can fight against tyranny,” he would later say in Franklin, N.C. He added, “If our election systems continue to be rigged, and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed.”

Mr. Bopp said all of that was beside the point. Section three of the 14th amendment concludes with a key phrase that refers to the insurrectionist disqualification, or disability: “Congress may by a vote of two-thirds of each House, remove such disability.” Congress did just that, he said, with the Amnesty Act of 1872 that declared, that “all political disabilities imposed by the third section” of the 14th amendment were “hereby removed from all persons whomsoever.”

Gerard N. Magliocca, an expert witness for the complainants and a law professor at Indiana University who has written on the constitutional section in question, said Mr. Bopp was wrong.

Congress did not discuss what would happen in the future when it debated granting amnesty to confederates in 1872, nor did it have the power to grant prospective pardons, he said. Mr. Berger, the sole office holder denied re-election after Reconstruction because of the amendment, tried to make the same argument, but Congress rejected it.

Besides, Mr. Magliocca said, the section at issue remains in the Constitution; Congress does not have the power to repeal it.

Mr. Bopp also said the Constitution clearly granted each chamber of Congress — not a board of elections — the power to determine eligibility for office, an assertion that Ron Fein, the legal director of Free Speech for People, a nonpartisan interest group that is participating in the challenge, dismissed.

“If he’s right, than a nine-year-old could show up with enough signatures and qualify for the ballot, because only Congress could disqualify him after the election,” Mr. Fein said.

Michael J. Gerhardt, a constitutional law professor at the University of North Carolina, said such disputes were weighty ones for a board of elections, and he predicted that Mr. Cawthorn would seek to force the courts to decide whether he is or is not an insurrectionist. He did not agree that the case was frivolous.

“There’s an old saying in law school, ‘Does it pass the straight-face test?’” he said. “And I think they pass the straight-face test.”

For Mr. Cawthorn, that would be a problem beyond the spectacle of him having to answer whether he is an insurrectionist. North Carolina’s new House district map, heavily gerrymandered by the Republican legislature, is currently stuck in court, and the state’s Board of Elections has frozen the candidacy qualifications case against Mr. Cawthorn until he can determine which district he intends to be a candidate in.

With North Carolina’s Republican primary scheduled for June, the delays could jeopardize his ability to even get his name on a ballot.

Ultimately, those involved in the case could use Mr. Cawthorn’s example to try to keep Mr. Trump off the ballot in North Carolina, a key swing state, should he try for a presidential comeback in 2024.

“We are definitely going to file other challenges,” Mr. Fein said. “We have no specific names or dates to divulge just yet.”

https://www.nytimes.com/2022/01/25/us/p ... jan-6.html

barney
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Re: Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

Post by barney » Wed Jan 26, 2022 8:05 pm

What? Are the GOP suddenly trying to say that democracy matters, having shown the utmost contempt for the concept since 2016 - or earlier.

maestrob
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Re: Will Madison Cawthorn Be Brought Down by ‘Insurrection’?

Post by maestrob » Fri Jan 28, 2022 8:39 am

barney wrote:
Wed Jan 26, 2022 8:05 pm
What? Are the GOP suddenly trying to say that democracy matters, having shown the utmost contempt for the concept since 2016 - or earlier.
Just so.

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