Subverting The Rule Of Law: Trump Appointed Judge Blocks Effort to Disqualify Rep. Madison Cawthorn From Ballot

The New York Times reported last week, Judge Blocks Effort to Disqualify Cawthorn from Ballot as ‘Insurrectionist’:

A judge on Friday blocked a novel electoral challenge that sought to disqualify Representative Madison Cawthorn of North Carolina from running for re-election by labeling him an insurrectionist, issuing an equally novel order that invoked a post-Civil War law that forgave confederate soldiers and sympathizers.

U.S. District Judge Richard E. Myers II, an appointee of President Donald J. Trump, stepped in to squelch an effort by lawyers and voters in North Carolina who had filed a motion before the state’s Board of Elections declaring Mr. Cawthorn, 26, ineligible for re-election under the Constitution. They had contended that the first-term Republican’s support for rioters who attacked the Capitol on Jan. 6, 2021, made him an “insurrectionist,” and therefore barred him from office under the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy.

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.”

Judge Myers sided with the argument of James Bopp Jr., a prominent conservative campaign lawyer, who noted that section three concluded with a caveat: “Congress may by a vote of two-thirds of each House, remove such disability.” The Amnesty Act of 1872 did just that when it declared that “all political disabilities imposed by the third section” of the 14th amendment were “hereby removed from all persons whomsoever.”

The ruling angered lawyers in the case who correctly argued that the 1872 law applied only to Civil War confederates, not any insurrectionist in the future, and that a law could not usurp a constitutional amendment.

Note: Even someone with a rudimentary 5th grade level of civics education knows that a constitutional amendment cannot be rescinded or amended by a simple act of Congress. It requires another constitutional amendment. (Example: Prohibition).

Section 3 of the 14th Amendment was not just to punish Confederates, but to serve as a disincentive to any future seditious insurrections. Read the damn legislative history and debates of the 14th Amendment.

A Congress in 1872 could not absolve the high crimes of sedition and insurrection prospectively by a future generation of Americans almost 150 years in the future. Congress cannot absolve persons not yet even born for high crimes not yet committed at some time in the future. This is patently absurd.

Students of History know that the Amnesty Act of 1872 only applied to former Confederates. In fact, the last time Section 3 of the 14th Amendment was invoked was in 1919. Rep.Victor Luitpold Berger, a Socialist from Wisconsin, was convicted of violating the Espionage Act for publicizing his anti-interventionist views about Work War I. “Although he was under indictment at the time, the voters of Milwaukee elected Berger to the House of Representatives in 1918. When he arrived in Washington to claim his seat, Congress formed a special committee to determine whether a convicted felon and war opponent should be seated as a member of Congress. On November 10, 1919, they concluded that he should not, and they declared the seat vacant. He was disqualified pursuant to Section 3 of the Fourteenth Amendment to the United States Constitution. Wisconsin promptly held a special election to fill the vacant seat and, on December 19, 1919, elected Berger a second time. On January 10, 1920, the House again refused to seat him, pursuant to Section 3 of the Fourteenth Amendment to the United States Constitution.

“According to this court ruling, the 1872 amnesty law, by a trick of wording that — although no one noticed it at the time, or in the 150 years since — completely undermined Congress’s careful decision to write the insurrectionist disqualification clause to apply to future insurrections,” said Ron Fein, the legal director of Free Speech For People, an organization that helped with the case. “This is patently absurd.”

But Mr. Bopp [whom I have despised for decades] said on Friday that, because the 14th Amendment applied to past and future insurrections, so did the subsequent amnesty. Judge Myers, a former law professor at the University of North Carolina and who clerked for conservative Judge David Sentelle at the U.S. Court of Appeals for the District of Columbia Circuit, agreed.

Mr. Fein called for the ruling to be appealed, but the activists who brought the challenge cannot do that. Since the injunction was aimed at the state, only the North Carolina State Board of Elections or the state attorney general can appeal, and it is not clear that either will get involved.

The challengers had hoped to at least get to question Mr. Cawthorn under oath for his role in stoking the violence that erupted at the Capitol on Jan. 6, 2021, and sympathizing with those who carried it out. Mr. Cawthorn had encouraged conservatives to gather in Washington on that day for a “Save America” rally behind the White House. He had urged Mr. Trump’s supporters to “call your congressman” to protest Congress’s official count of electoral votes to finalize the 2020 election results, adding, “you can lightly threaten them.” And after the riot, Mr. Cawthorn asserted that those jailed for storming the Capitol were “political hostages” that he would like to “bust” out of prison.

Mr. Cawthorn turned to the federal courts to intervene before the Board of Elections could set a hearing to determine his eligibility for the ballot.

The effort to block Mr. Cawthorn from running for re-election could now be over.

But, Mr. Bopp said, “I never underestimate the willingness of lawyers to keep fighting.”

This politically motivated and wrongly decided opinion has no bearing on any candidates outside of North Carolina. It is not on the merits nor is it precedent. Lawyers should not be dissuaded from challenging any other of the 147 Republican lawmakers who still objected to the election results even after the Capitol attack.