Cawthorn v. Circosta
On January 6, 2021, a crowd of thousands violently breached the Capitol in a bid to prevent Congress from certifying the results of the 2020 presidential election. Representative Cawthorn was among those lawmakers who helped to plan the January 6 rally. He participated in dozens of planning meetings ahead of the January 6th rally, publicly promoted the event on social media, and just an hour before Trump implored his supporters to march to the Capitol, Cawthorn rallied the crowd for having “some fight in it.”
Based on his participation in these events, several registered North Carolina voters challenged Cawthorn’s candidacy, alleging that he is disqualified from holding office under Section Three of the Fourteenth Amendment. Ratified in the wake of the Civil War, Section Three disqualifies from holding state or federal office any elected official who swore an oath to uphold the Constitution, but then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to the enemies thereof.”
In response, Cawthorn filed suit in federal court, claiming that a statute passed in 1872 immunizes him from Section Three disqualification. That act removed Section Three disqualification from certain former Confederates, but Cawthorn argues that it also gave amnesty to all potential future insurrectionists. The district court agreed, granting Cawthon’s motion for a permanent injunction. The voters challenging Cawthorn’s eligibility subsequently filed an emergency application in the Fourth Circuit to stay the injunction. On March 11, 2022, CAC filed an amicus brief in support of the North Carolina voters, urging the court of appeals to grant the stay. On March 17, 2022, the Fourth Circuit denied the motion to stay the preliminary injunction. On April 14, 2022, CAC filed another amicus brief in the merits appeal, arguing that the 1872 Act does not immunize Cawthorn from Section Three disqualification.
Our brief made two main points.
First, our brief explained that the text and history of the 1872 Amnesty Act make clear that it was passed to grant immunity retrospectively to certain former confederates, not to grant immunity prospectively to all future insurrectionists. By providing that “all political disabilities imposed by” Section Three “are hereby removed, the text of the 1872 Act plainly indicates that it only applies to Section Three disqualifications that were already “imposed” in the past. The history of the statute also confirms the plain meaning of the text—that it only applies to individuals who had been disqualified from holding office prior to its passage. Before the 1872 Act was passed, Congress had been passing private bills to relieve former Confederates of Section Three disqualification. The 1872 statute was passed to take the place of that cumbersome process. In other words, rather than pass a statute with a long list of names, Congress elected to use a general phrase to identify those former Confederates it was relieving of disqualification. As our brief made clear, it was not a statute designed to grant amnesty to potential future insurrectionists. The 1872 Amnesty Act was part of a shameful chapter in our nation’s history, allowing those who had recently taken up arms against their country in defense of slavery to hold office once again. Cawthorn would have had the courts extend the effects of that statute to the present day, but its text and history made clear that its reach is limited to the past.
Second, our brief showed that Congress has previously concluded that Section Three disqualifications cannot be removed prospectively. In 1919, the House investigated whether Congressman Victor L. Berger, who had been convicted of violating the Espionage Act of 1917, had incurred Section Three disqualifications. Berger argued that Section Three had been “entirely repealed by an Act of Congress.” But instead of pointing to the 1872 Act, he pointed to a similar statute Congress had passed in 1898 which stated that “the disability imposed by Section Three of the fourteenth amendment to the Constitution of the United States heretofore incurred is hereby removed.” Berger argued, much like Representative Cawthorn did, that Section Three gives Congress the power to prospectively grant amnesty to future insurrectionists. The House disagreed, concluding that disqualifications could not be lifted prospectively and that Section Three barred Congressman Berger from serving as a member of Congress.
In summary, our brief argued that Cawthorn’s efforts to evade accountability for his role in the January 6 attack is at odds with the text and history of the statute on which he relied. And his argument, if it were accepted, would mean that Section Three of the Fourteenth Amendment was currently without effect.
On May 24, 2022, the Fourth Circuit issued its decision, holding that the 1872 Amnesty Act does not immunize Representative Cawthorn from Section Three disqualification. Echoing arguments in made in CAC’s brief, the court recognized that the 1872 Act was passed to grant immunity retrospectively to certain former Confederates, not to grant immunity prospectively to all future insurrectionists.