Appeals Court Revives ‘Insurrection’ Challenge to Rep. Madison Cawthorn’s Candidacy

4th Circuit rules 14th Amendment can be used to block Jan. 6 participants from seeking office

In this screenshot from the RNC’s live stream of the 2020 Republican National Convention, North Carolina congressional nominee Madison Cawthorn addresses the virtual convention on Aug. 26, 2020. Courtesy of the Committee on Arrangements for the 2020 Republican National Committee via Getty Images

A federal appeals court greenlighted an effort to disqualify GOP Rep. Madison Cawthorn as a candidate for allegedly engaging in insurrectionary activity by attending and speaking at the Jan. 6, 2021, pro-Trump rally that was followed by a security breach of the U.S. Capitol.

The incident, characterized by Democrats and some Republicans as an insurrection, delayed the congressional certification of Joe Biden’s election as president by several hours.

The decision by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, issued on May 24, overturns a lower court’s finding that the 1872 Amnesty Act that bestowed amnesty on almost all members of the Confederacy had the effect of immunizing Cawthorn from a lawsuit brought under the Disqualification Clause in Section 3 of the 14th Amendment to the U.S. Constitution.

The relevant part of that constitutional provision states, “No person shall be a … Representative in Congress … who, having previously taken an oath, as a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

Cawthorn’s mere advocacy of a pro-Trump position during the aftermath of the hotly contested 2020 presidential election doesn’t constitute participating in an insurrection, his attorney James Bopp Jr. told The Epoch Times on Feb. 14.

Cawthorn, 26, a freshman in Congress, was elected in November 2020 and describes himself as a Christian and constitutional conservative. He was considered to be a rising star in the conservative movement, but lost his primary bid for North Carolina’s 11th congressional district to Chuck Edwards, a state senator, on May 17, according to unofficial results. Although a favorite of former President Donald Trump, who supported Cawthorn’s reelection bid, the outspoken freshman congressman ruffled feathers among the GOP establishment and is being investigated by House Democrats for possible ethics violations.

Writing for the panel, Judge Toby Heytens, who was appointed by President Joe Biden, stated (pdf) in the 73-page opinion in Cawthorn v. Amalfi that the post-Civil War statute “does not categorically exempt all future rebels and insurrectionists from the political disabilities that otherwise would be created by Section 3 of the Fourteenth Amendment.”

Heytens noted in a footnote that Cawthorn’s claim that the case is “moot” because he won’t be a candidate in the 2022 general election is irrelevant “because a primary winner has not yet been certified and it does not appear the challengers have withdrawn their challenge.”

The other two judges on the panel, James Wynn, an Obama appointee, and Julius Richardson, a Trump appointee, filed concurring opinions.

The lawsuit was filed in January when a group of voters filed a complaint with the North Carolina State Board of Elections, alleging that Cawthorn’s involvement in the rally 16 months ago was disqualifying behavior for a candidate. The board did not disqualify Cawthorn but took the position that it had the power to do so. Cawthorn sued in federal district court and won but the effort to disqualify him continued.

The North Carolina voters were backed in the case at hand by Free Speech For People, a left-wing advocacy group.

The nonprofit organization also tried unsuccessfully to disqualify outspoken Trump supporter Rep. Marjorie Taylor Greene, a Georgia Republican, on the same grounds. The group’s challenge to Republican state Sen. Doug Mastriano, an outspoken Trump supporter, from the Pennsylvania governor’s race on “insurrection” grounds has yet to bear fruit.