Post-Confederate law bars Jan. 6 speaker Rep. Cawthorn from office, challengers argue

North Carolina Republican Rep. Madison Cawthorn has developed a national following as one of the most far-right members of Congress.

But now his ability to run for reelection in the fall is being challenged, in part because of his actions on the day of the attack on the U.S. Capitol more than a year ago.

A team of lawyers says he violated U.S. Constitution. Section 3 of the 14th Amendment, which was passed after the Civil War to prevent Confederates from holding public office, states that no one can hold office if they had taken an oath to support the Constitution and then "engaged in insurrection."

Cawthorn — who is the youngest member of Congress at 26 — promoted President Donald Trump's Jan. 6 rally near the Capitol, writing on Twitter that "the future of this Republic hinges on the actions of a solitary few."

And he was a prominent speaker at the rally, pushing baseless claims of election fraud.

"My friends, the Democrats with all the fraud they have done in this election, the Republicans hiding and not fighting — they are trying to silence your voice," Cawthorn said during the rally, which preceded the Capitol riot.

Months later, he said that if elections are stolen there would be "more bloodshed."

Ron Fein is the legal director for Free Speech for People, an organization that's funding the challenge to Cawthorn's candidacy.

"It's not just that Cawthorn spoke at that pre-attack demonstration — one of only two members of Congress who spoke there — alongside other speakers who were demanding trial by combat and talking about sacrificing blood to fight for America," Fein said. "But we also have reliable reporting that Cawthorn and his team were communicating with the planners ahead of Jan. 6 and helped to plan some of these events."

And that is the crux of their challenge. They say Cawthorn is an insurrectionist, just like Confederates who took up arms against the United States 160 years ago.

Eligibility challenges in North Carolina — or any state — usually revolve around simple questions like: Does the candidate live in their district?

The state's framework for resolving eligibility questions will likely be used for the challenge against Cawthorn. And under state law, the burden is on Cawthorn to show he is eligible, that his candidacy does not violate the Reconstruction-era amendment.

Former North Carolina Supreme Court Justice Bob Orr, a former Republican, is working on the case and said there is local precedent, albeit from two centuries ago: A former North Carolina Confederate sheriff was disqualified from serving after the Civil War when the 14th Amendment was invoked.

Orr said Cawthorn took an oath and there was an insurrection. He said the only remaining question is how involved was Cawthorn?

"Did he provide aid and comfort and engage in this?" Orr said. "And we think there is certainly enough evidence on the public record that we know of now, and will certainly be looking for additional evidence."

By additional evidence, Orr means being able to depose Cawthorn under oath, to learn about any involvement he may have had with Jan. 6 plotters.

Cawthorn tries to fend off the effort

But Cawthorn filed a lawsuit in federal court this week to stop the challenge.

One of his attorneys, James Bopp Jr., said the eligibility dispute against Cawthorn is a "despicable attempt by the Democrats to undermine democracy."

Bopp said the challenge fails on several levels. The first, he said, is that it violates Cawthorn's First Amendment rights.

"The word in Section 3 of the 14th Amendment is, quote, 'engage,' " Bopp said. "Engage connotes conduct, not speech."

Bopp also said he doesn't believe the Capitol attack was an insurrection.

"[The challenge] spits in the grave of all those Union soldiers that fought in the Civil War to preserve the Union and free the slaves and who fought a bona fide rebellion and insurrection," he said.

Fein, of Free Speech For People, said Bopp is rewriting history. Immediately after the Jan. 6 attack, people widely acknowledged there had been an insurrection.

"President Trump's lawyer in his impeachment trial conceded that it was an insurrection," Fein said.

Depending on what happens with Cawthorn's lawsuit, his eligibility will be taken up by a special panel of local elections officials from the counties in his district in the mountains of Western North Carolina. They are supposed to make a final determination as to Cawthorn's eligibility. Any appeal would be considered by the State Board of Elections, which consists of three Democrats and two Republicans.

Fein said his group will use the same insurrectionist challenge against other candidates — including the former president.

"If Mr. Trump decides to file for reelection, then we absolutely intend to challenge his candidacy," he said.

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