Jan. 6 Should Disqualify Some Republicans From Re-election

Section 3 of the 14th Amendment to the United States Constitution provides in relevant part as follows concerning those who have engaged in or support those who engaged in isurrection against the government of the United States:

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.

Relying on this provision, in North Carolina a lawsuit has been filed to bar Representative Madison Cawthorn - a clear supporter of the January 6th insurrectionists who has encouraged violence - from standing for re-election to Congress.   A column in the New York Times by a a former U.S. attorney and deputy assistant attorney general looks at how this provision of the 14th Amendment should bar others - including Donald Trump - from holding office in the future.  Here are excerpts: 

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.

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.

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.

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.

Let's hope similar challenges are filed against other insurrectionist Republican office holders.