Use Section 3 Of The 14th Amendment To Disqualify The Seditious Insurrectionists From Political Office

We need more good lawyering like this. “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.” Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectionist’?

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.”

This should be used to disqualify from public office every one of the 147 Republican lawmakers who still objected to the election results even after the Capitol attack.

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.

Bopp is the preeminent Republican voter suppression lawyer, who will have much to answer for in eternity in Hell. Get a load of this bullshit from this partisan hack apologist for seditious insurrectionists:

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.”

UPDATE: Republican Rep. Madison Cawthorn is suing the North Carolina State Board of Elections, fighting a challenge to his reelection campaign that argues he should be barred from running for office for having “engaged in insurrection” on Jan. 6, 2021. Madison Cawthorn Sues NC Elections Board Over Challenge To His Reelection Bid:

Cawthorn’s lawsuit, filed Monday, says he “vigorously denies that he engaged in ‘insurrection or rebellion’ against the United States.” The suit rejects claims that he is ineligible to run for office under the law and says he has a right to seek reelection, stating: “running for political office is quintessential First Amendment activity and afforded great protection.”

Cawthorn’s lawyer James Bopp, Jr. makes a disingenuous and legally incorrect argument:

Mr. Bopp said  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 General 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. Victor Berger, the sole office holder denied re-election after Reconstruction because of the amendment, tried to make the same argument, but Congress rejected it. (See below).

Besides, Mr. Magliocca said, the section at issue remains in the Constitution; Congress does not have the power to repeal it [by a simple statutory enactment].

Section 3 of the 14th Amendment was last invoked in 1920 against Representative Victor L. Berger, an Austrian–American socialist politician and journalist who was a founding member of the Social Democratic Party of America and its successor, the Socialist Party of America.

Berger’s continued opposition to the war made him a target. He and four other Socialists were indicted under the Espionage Act in February 1918; the trial followed on December 9 of that year, and on February 20, 1919, Berger was convicted and sentenced to 20 years in federal prison.

During the 1918 Wisconsin special senate election, Berger ran for the seat under federal indictment. In spite of his being under indictment at the time, the voters of Milwaukee elected Berger to the House of Representatives in 1918.

When Berger 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 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.

The House of Representatives twice denied Berger his seat in the House due to his original conviction for espionage using Section 3 of the Fourteenth Amendment to the United States Constitution regarding denying office to those who supported “insurrection or rebellion.” The Supreme Court overturned the verdict in 1921 in Berger v. U.S., and Berger won three successive terms in the House in the 1920s.

So Section 3 of the 14th Amendment clearly is not limited to former Confederate office holders, and can be used to disqualify those who either engage in or provide aid and comfort to an insurrection against the United States.

Cawthorn’s lawyer James Bopp, Jr. makes another disingenuous and legally incorrect argument:

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.

Moreover, the nation’s election process is decentralized by Article I, Section 4, of the United States Constitution (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof“). Ballot access laws are established and enforced by the states, not by Congress.

North Carolina election law provides a unique opportunity to test this constitutional provision against the January 6 insurrectionists:

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.

[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.

Cliff Sloan, a distinguished visitor from practice at Georgetown University Law Center, and Brendan Gants, a lawyer in private practice in Washington, write at the Washington Post, How Congress can keep Trump and other insurrectionists out of public office:

On Jan. 6, 2021, supporters of Donald Trump stormed the U.S. Capitol, savagely assaulted officers of the Capitol Police and local police forces, and sought to disrupt the lawful counting of electoral votes. This past weekend, Trump offered to pardon them if he regains the presidency, and he complained that his vice president, Mike Pence, “could have overturned the Election” but “unfortunately” did not. A violent movement led by a president who demands that elections be overturned, and wields official power to protect those who would aid him in doing so, is an existential threat to American democracy.

Amid debate over the possibility of prosecuting Trump and many of those who stormed the Capitol, little attention has been paid to a clear path Congress could take to protect our constitutional democracy from the threat that Trump and his fellow insurrectionists would pose in public office. Section 3 of the 14th Amendment disqualifies from any state or federal office, including the presidency, anyone who participated in or supported an insurrection against the United States. Congress should invoke this provision without delay.

The 14th Amendment was ratified in the wake of the Civil War. Section 3 provides that no person can “hold any office … under the United States, or under any State,” if that person took an oath “to support the Constitution of the United States” and has “engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.” The amendment gives Congress authority to enforce Section 3 through “appropriate legislation.”

Shortly after ratifying the amendment, Congress passed the Enforcement Act of 1870, authorizing the Justice Department to file federal lawsuits to oust insurrectionist officeholders under Section 3. The department brought actions against former Confederates nationwide, including half of the Tennessee Supreme Court. Congress later removed most disqualified individuals’ Section 3 disability, as the provision allows by a two-thirds vote of each house [the General Amnesty Act of 1872]. Since then, Section 3 has been invoked sparingly — a testament to the rarity of insurrections.

In the wake of Jan. 6, Congress must reassert its Section 3 authority. The Constitution requires only a majority vote in each house of Congress for this vital protection.

This puts Democrats in Congress in the postion of disqualifying from office the 147 Republican lawmakers who still objected to the election results even after the Capitol attack. The media would howl that this is politically motivated, but it is the Constitutional remedy that the Radical Republicans put into the 14th Amendment after the Civil War. Vichy Democrats Sens. Joe Manchin and Kyrsten Sinema are unlikely to vote for disqualification of the Sedition Party from office because they would rather sacrifice American democracy on the altar of “bipartisanship,” i.e., appeasement of the enemies of democracy.

A statute disqualifying Jan. 6 insurrectionists from holding office could take various forms. One would be legislative enumeration of individual insurrectionists, an option the Section 3 drafters apparently contemplated. The best approach, however, would be congressional authorization for the Justice Department to file suit to disqualify insurrectionists from state and federal offices under Section 3, the path the Reconstruction Congress took regarding incumbent officeholders. Such legislation should cover candidates as well. This would ensure constitutional protections for accused individuals, while protecting our constitutional democracy against insurrectionists who violated their oaths to protect it. (This sort of statute would also remove any doubts about enforceability such as those raised about a challenge private citizens have filed to stop Rep. Madison Cawthorn (R-N.C.) from seeking reelection, citing Section 3.)

That category plainly includes Trump. As president, he took an oath to support the Constitution. Yet he was the driving force behind what federal prosecutors have deemed a “violent insurrection.” He stoked supporters with brazen false claims of a stolen election. He encouraged their disruption of Congress’s vote-counting process on Jan. 6, telling them to “fight like hell” or else they were “not going to have a country anymore.” While the rebellion was in process, he praised its perpetrators as “very special.” He refused to exercise his powers as president to defend the Capitol. Even now, he dangles pardons for those who tried to achieve his stated goal — overturning a democratic election — by force.

While some have claimed that Section 3 does not apply to presidential candidates, that contention cannot be reconciled with the constitutional text, purpose or history. Surely the 14th Amendment’s framers did not mean to make Jefferson Davis ineligible for the Mississippi state legislature but eligible for the presidency of the United States.

The need for the law extends beyond Trump. Reports abound of individuals with insurrectionist ties seeking public office. It is essential that Congress protect the nation against an insurrectionist in state or federal office if that person previously swore an oath to defend the Constitution as a public officeholder.

Congressional action to disqualify Trump under Section 3 should have bipartisan support. A majority of senators and representatives, including 17 Republicans, have already voted to hold Trump accountable under articles of impeachment based on the same conduct. And many others, including Sen. Mitch McConnell (R-Ky.), have said Trump was responsible for the Jan. 6 attack but cited constitutional qualms about convicting a former president on impeachment charges. Such concerns do not conflict with using Section 3 for its core constitutional purpose.

Legally correct, but politically naive. Republicans are amoral craven cowards. They only care about power. They do not care about the Constitution, the rule of law, their oath of office, or American democracy. Not one Republican will vote for disqualification of the 147 Republican lawmakers who still objected to the election results even after the Capitol attack out of fear of retribution from their violent anti-democracy insurrectionist base.

The Jan. 6 insurrectionists threatened not only a constitutional process but also the right of the people to choose leaders through free and fair elections. They should not be able to continue to threaten that right from public office. Congress must act immediately to enforce Section 3 and ensure that insurrectionists who violated their oath to support the Constitution, including Trump, cannot assume public office and threaten it again.