Insurrectionists can be barred from office, appeals court says
Participants in an insurrection against the U.S. government can be barred from holding office, the U.S. Court of Appeals for the 4th Circuit ruled Tuesday.
The decision came in the case of Republican Rep. Madison Cawthorn, who before losing his House primary this month faced a challenge from North Carolina voters arguing that his actions around the Jan. 6, 2021, U.S. Capitol attack made him ineligible for future public service. Cawthorn suggested his case was moot given his primary loss, but the court disagreed, given that the election had not yet been certified and because the same issue could come up in another campaign.
The voting rights group Free Speech For People is backing challenges to several Republicans under a post-Civil War law that blocks from taking office anyone "who, having previously taken an oath, as a member of Congress . . . engaged in insurrection or rebellion."
Even though Cawthorn won't be on a ballot this fall, the voters argued that the court had to overturn a lower court's opinion that all insurrectionists, past and future, were granted amnesty under another law from the 1870s that forgave most Confederates.
The appeals court sided with the voters, without ruling on whether Cawthorn personally engaged in an insurrection or on whether the process state officials planned to use to decide this question was constitutional.
"The available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness," Judge Toby Heytens wrote on behalf of the three-judge panel. He called it "quite a stretch" to read the law as giving "categorical advance forgiveness" to any future rebel leader.
Cawthorn spoke at the rally that preceded the attack on the Capitol, telling the crowd to "fight." His challengers point to that, along with reporting indicating his office was working with protest organizers before the event, to assert that he engaged in insurrection. He has denied any advance knowledge of plans for violence.
Free Speech For People also challenged the candidacy of Rep. Marjorie Taylor Greene, R-Ga.; she was cleared by state officials to run for reelection, but litigation continues. A state court dismissed challenges to the candidacy of two Arizona House members.
In a statement, the group called the ruling a "major victory" that "cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of January 6, 2021 — including Donald Trump — from the consequences of their actions."
Attorneys for Cawthorn argued that since the House of Representatives can grant any insurrectionist amnesty with a two-thirds vote, state officials can't preemptively take someone off the ballot for activity that may yet be forgiven.
Judge Julius Richardson agreed with that position, writing that he would reverse the lower court decision not for misinterpreting the amnesty law, but for considering it at all: "The only actor in our American constitutional system that can judge the qualifications of members of the House of Representatives is the House of Representatives itself."
Before losing his primary, Cawthorn clashed with GOP leaders by accusing fellow lawmakers of abandoning their principles and telling stories about drug use and sex parties in Washington. He initially planned to run in a new, more conservative district before switching back to his current one after a court struck that map down. He has also been repeatedly cited for driving on a revoked license and trying to bring a gun on a commercial plane. This week, the House Ethics Committee launched an investigation into whether he "improperly promoted a cryptocurrency in which he may have had an undisclosed financial interest" and "engaged in an improper relationship" with a staffer.
A spokesman for Cawthorn did not immediately return a request for comment.
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