Banning ‘Insurrectionists’ Redux

Lawyers in North Carolina are trying to get a Congressman off the ballot.

NYT (“Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectionist’?“):

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.

While I’m skeptical that Cawthorn, or anyone who hasn’t been convicted of a felony related to sedition or treason, can be punished as an “insurrectionist,” I’m happy to have him serve as a guinea pig to test that in court.

“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.”

I did not attend law school but, as I understand it, it should be up to accusers to prove Cawthorn is an insurrectionist, not vice-versa. I believe I’ve read that somewhere.

. . . 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.

I would be happy, indeed, if none of those individuals ever again held positions of public trust in the United States. But, again, I’m skeptical of using lawsuits to challenge the right of people who have not been convicted of crimes to present themselves to the voters.

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.

And that’s why I’m so skeptical: a United States citizen who otherwise meets the Constituitonal qualifications for office should not be barred from running because he holds unpopular views. If those unpopular views mean that the voters reject their candidacy, so be it. But we have a right to criticize our government, hold extreme and unpopular views, or even be complete jackasses. If that appeals to local constituencies, that’s not great for the Republic. But that’s democracy.

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.

Which is another reason judges should dismiss the case. Citizens, even those running for public office, should not be required to spend inordinate time and money fighting off frivolous suits that are fishing expeditions in disguise. There is no reason these lawyers should have a right to depose Cawthorne. If he’s charged with a crime, then DOJ’s lawyers can do that.

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.”

All of this makes Cawthorn a jackass unfit for office. None of it makes him an insurrectionist. It’s just silly.

FILED UNDER: Democracy, US Constitution, US Politics, , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. gVOR08 says:

    Citizens, even those running for public office, should not be required to spend inordinate time and money fighting off frivolous suits that are fishing expeditions in disguise.

    Meanwhile Texas has an odd rule of civil procedure, rule 202, which does just that, allows deposition without a suit being filed. Exxon/Mobil is using it to harass CA activists and city officials. EXXON seems to be wanting to claim the Californians have infringed EXXON’s free speech rights by saying EXXON lied about global warming.

    As to Madison Cawthorn, I’m good with anything that might work to remove him from public life. Isn’t there an implicit requirement that an office holder be a “person”, i.e. human? Challenge Cawthorn to prove he’s not the lizard he appears to be.

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  2. Sleeping Dog says:

    While the 14th amendment issue prompts this, it is likely to turn on the North Carolina law that seems to have been written in support of the move to eliminate insurrectionists. But that law seems to of questionable constitutionality on a couple of levels, but the most pertinent is that it interferes with Congresses right to decide who is qualified to sit in the chamber.

    Quite likely Cawthorn and his supporters will be making a similar constitutional argument that supporters of John Lewis and other voting access legislation make.

  3. Joe says:

    I am not sure I would insist on a criminal conviction, but the bar should be pretty high to be deemed an insurrectionist for purposes of the the XIV Amendment. But it also extends to those who give aid or comfort to insurrectionists. Cheer leading those people should not be enough, but if it turns out he planned with any of those currently being prosecuted for insurrection related crimes, that would be enough for me.

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  4. OzarkHillbilly says:

    As much as I’d like to see him thoroughly discredited and *a laughing stock in NC*, I won’t be grasping at this straw.

    ** he’s already a laughing stock in much of the world but it only really matters in his district.

  5. MarkedMan says:

    While I’m skeptical that Cawthorn, or anyone who hasn’t been convicted of a felony related to sedition or treason, can be punished as an “insurrectionist,”

    When the 14th amendment was adopted, the vast majority of those affected were not convicted in any court of anything.

    Cawthorn and his ilk are traitors. They are un-American. We are not obligated to let them infect the body politic if their only intention is to dismantle it.

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  6. gVOR08 says:

    @MarkedMan: Excellent point. Precedent is clearly against criminal conviction being necessary. Unfortunately, these days precedent is whatever five out of six Federalist Stepford Justices feel like saying it is.

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  7. James Joyner says:

    @MarkedMan: @gVOR08: As argued in my previous post on this, that section was essentially bill of attainder directed at all former Confederate officials and officers. Most of whom were actually given amnesty by legislation two years later. Whether it has any bearing on non-CSA insurrectionists hadn’t been adjudicated but it surely requires legal finding. Nor could Congress simply declare anyone who took part in Jan 6 to be insurrectionists; that would be a bill of attainder.

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  8. Daryl and his brother Darryl says:

    Cawthorn played his part in inciting violence on January 6th, and he then proceeded to vote to reject the ACTUAL electors. We now know there were forged elector certifications, and that this was all part of the conspiracy to overturn a free and fair election and install TFG as King Donnie. I guess reasonable people can disagree on whether that makes him an insurrectionist.
    What is not clear to me, and I have been paying attention to this, is what exactly is required to invoke Section 3 of the 14th.

    No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

    Rebellion and Aid and Comfort are hardly legal standards.
    But it’s pretty clear to me that a shit-ton of people violated their Oaths of Office. Maybe it’s that simple.
    (I think that is a part of AG Garlands struggle on this; that the rot of conspiracy runs so deep into the Republican Party and prosecuting it will destroy one of our two main political parties.)
    I’d love to hear thoughts from our resident legal experts.

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  9. gVOR08 says:

    @Daryl and his brother Darryl:

    I guess reasonable people can disagree on whether that makes him an insurrectionist. …I’d love to hear thoughts from our resident legal experts.

    IANAL. But I will opine that all reasonable people should agree he’s an insurrectionist. The law, on the other hand…

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  10. just nutha says:

    @Sleeping Dog: I don’t see the move as being about who can sit in Congress as much as it is about who can be placed on the ballot.
    […]
    On the frivolous lawsuits being used a fishing expeditions front, if the good citizen legislators of NC have decided to permit them, and again they appear to have, who am I to object to the way they choose to run their state?

  11. wr says:

    He’ll probably be able to get out of this, and that may even be right. But it’s going to cause him some shitty days and big legal fees, and that alone makes me happy.

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  12. Moosebreath says:

    “Citizens, even those running for public office, should not be required to spend inordinate time and money fighting off frivolous suits that are fishing expeditions in disguise”

    Kenneth Starr dissents.

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  13. Sleeping Dog says:

    @just nutha:

    good point

  14. MarkedMan says:

    @James Joyner: Our forefathers had the wisdom to say those who have proven they will not accept the democratic system and have actively tried to overthrow it shall not be allowed any power within that system. It was correct and wise then and it is correct and wise today.

    And I don’t really give a sh*t whether whether North Carolinians feel they want him representing them. There are rules and they can damn well follow them. After all, they voted in the last round of traitors too, and you see what that led to.

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  15. JKB says:

    @Daryl and his brother Darryl: 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.

    Well, first you have to show there was an insurrection, then clear up whether the insurrection was to stop the government from doing something that citizens believed was against the Constitution. And if it was the latter, then the amendment doesn’t apply.

    See, the US government isn’t the same as the US Constitution. The government only retains legitimacy as long as it is in accordance with the constitution. It’s a little detail mostly overlooked. The US government isn’t sovereign in the US, The People are. Obviously, it gets tricky if the SCOTUS interpretation of the Constitution falls out of line with that of The People. So now everyone gets to argue over who was protecting and defending the Constitution. And the government may throw people in prison, but is the government’s legitimacy that is in the dock.

    But first someone is going to have to prove their was an insurrection and not just a “peaceful protest” disfavored by the government in contrast to all the others in 2020.

    I suspect the courts, absent federal convictions, will defer to the voters and then the new Congress can seat or refuse to their on political accountability.

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  16. Kathy says:

    Well,

    The Moving Finger writes; and, having writ,
    Moves on: nor all thy Piety nor Wit
    Shall lure it back to cancel half a Line,
    Nor all thy Tears wash out a Word of it.

    The amendment is there and it’s part of the Constitution. If the people who composed it, campaigned for it, and voted for it, meant it to mean something else, they should have worded it differently.

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  17. John430 says:

    @gVOR08: As to Madison Cawthorn, I’m good with anything that might work to remove him from public life. Isn’t there an implicit requirement that an office holder be a “person”, i.e. human? Challenge Cawthorn to prove he’s not the lizard he appears to be.
    I don’t know anything about Cawthorn but, I seem to recall that Americans are innocent until proven guilty. And…as to regarding lizards…go back under your rock. You can only be a Russian hacker.

  18. DK says:

    It seems Professor Joyner is obviously right to portray this maneuver as legally dubious.

    I’m guessing those behind it know that and are more interested in highlighting Cawthorn’s treason-lite antics.

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  19. gVOR08 says:

    @John430:

    You can only be a Russian hacker.

    1) I’ve been commenting here at OTB going back before Russian hacking became a thing. And my English grammar and vocabulary are usually better than Russian hackers’. 2) Click the quote button, paste the quoted material, then click quote again. Sort of like you did with the i button. Or cut and paste the quoted material, select all of it, and click the quote button. And if the buttons aren’t displayed, refresh the page. Puts my words in blockquote format, which distinguishes them clearly from your words, which I would appreciate.

    And you are familiar with the lizard people meme?

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  20. Jax says:

    @John430:

    I don’t know anything about Cawthorn but, I seem to recall that Americans are innocent until proven guilty. And…as to regarding lizards…go back under your rock. You can only be a Russian hacker.

    “Innocent until proven guilty”….unless they’re black and daring to jog on a public road…play in a park….go to the store after dark….carry a legal weapon while black….

    We get it, John. You think the rabble who trashed the Capitol were simply people who thought the Constitution wasn’t being upheld….even though it absolutely was, proven by 60+ court cases. They’re “patriots”, right? What about the 7 million MORE American Patriots who voted for Biden and DIDN’T trash the Capitol?

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  21. Jax says:

    One of the regular reporters on the 1/6 cases on Twitter has been keeping track of the education level of the Defendants. It’s interesting how many of them really don’t understand how the government works, or what’s actually in the Constitution.

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  22. Just Another Ex-Republican says:

    “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? I think in such a case to silence the agitator and save the boy is not only constitutional, but withal, a great mercy.” –Abraham Lincoln

    I find this whole discussion triggering (sorry!). It reminds me of why so many foreign stereotypes about America involves lawyers and courts. While we finely parse legal hairs, people who actively tried to overthrow a valid election are serving in Congress. How is that NOT insurrection, using any commonly defined understanding of the term?

    “Nations do not die from invasion. They die from internal rottenness.” — Abraham Lincoln

    We are not talking about people holding “unpopular views” here, as you are concerned with above James. Far from it – his views are disappointingly popular. We are talking about a group that is actively undermining the continued existence of this country as a Constitutional Republic.

    “The people of these United States are the rightful masters of both Congresses and courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” –Abraham Lincoln

    And most importantly, the Constitution isn’t a suicide pact.

    “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” –Thomas Jefferson

    Sadly, I’m sure you’re right and this will go nowhere, and if it somehow did it would end up dying in our joke of a Supreme Court. BUT:

    “You must remember that some things legally right are not morally right.” –Abraham Lincoln

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  23. John430 says:

    @Jax: My remarks were to the issue of Cawthorn being “taken out ” of office by any way possible, dummy. Try to keep up.

  24. Jax says:

    @John430: His repeated lies about almost every aspect of his life should be enough to disqualify him from office, without even bringing up his actions on January 6th.

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  25. John430 says:

    @Jax: If that were the only aspect to be considered, then Joe Biden wouldn’t even have been sworn in. He evades any discussion of the millions of dollars his family has received from China, he has attacked black female judges before he now glowingly plans to nominate one, he claims authorship of Covid relief plans (all Trump’s initiating, BTW), and hand-picked the incompetent Kamala as his running mate. Bidenincompoop’s blunders are endless.