Confederate Amnesty Doesn’t Protect Cawthorn From Legal Challenge, State AG Argues

WASHINGTON, DC - JANUARY 3: Rep. Madison Cawthorn (R-NC) arrives on the House floor in the Capitol before being sworn in on January 3, 2021 in Washington, DC. Both chambers are holding rare Sunday sessions to open th... WASHINGTON, DC - JANUARY 3: Rep. Madison Cawthorn (R-NC) arrives on the House floor in the Capitol before being sworn in on January 3, 2021 in Washington, DC. Both chambers are holding rare Sunday sessions to open the new Congress on January 3 as the Constitution requires. (Photo By Bill Clark - Pool/Getty Images) MORE LESS

North Carolina’s attorney general’s office argued Tuesday that 19th-century congressional actions granting amnesty to Confederate soldiers did not apply to modern day insurrectionists. 

So Rep. Madison Cawthorn (R-NC), the office argued, had no business citing the Amnesty Act of 1872 in a lawsuit over a challenge to his eligibility to run for Congress. 

The court filing Tuesday came in response to the lawsuit from Cawthorn, who’s trying to head off a Jan. 6-related challenge to his eligibility for office brought by a group of North Carolina voters. Cawthorn spoke to the crowd assembled outside of the White House that day, and was reportedly in touch with organizers ahead of the event. 

Cawthorn’s challengers say he violated Section 3 of the 14th Amendment, which prohibits office-holders who “shall have engaged in insurrection or rebellion against the [Constitution], or given aid or comfort to the enemies thereof.” 

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Cawthorn’s lawyer, James Bopp Jr., told TPM last month that “there’s nothing in the Amnesty Act that says it’s only applicable to the Civil War.” The candidate subsequently filed a lawsuit in federal court seeking to pre-empt the North Carolina State Board of Elections’ authority to disqualify him. 

In Tuesday’s filing, the state attorney general’s office argued that Cawthorn’s Amnesty Act defense essentially amounted to an assertion that the 19th century Congress signed off on insurrectionary congressmen. 

“He argues that the Act abrogated Section 3 of the Fourteenth Amendment to allow any member of Congress, from 1872 onward, to engage in insurrection or rebellion without being barred from office,” the filing read. 

“Plaintiff’s argument is meritless, as it would invalidate the expressed intent of the legislators who enacted both the Fourteenth Amendment and the Amnesty Act of 1872.” 

The Amnesty Act used the past tense to refer to political disabilities “imposed” on former Confederates, the filing noted. And amnesty actions from Congress didn’t prevent the unseating of members of Congress in the future, namely Victor Berger in 1919. Members of Congress applied the 14th Amendment language to Berger, the first Socialist member of Congress, after he was found guilty of violating the Espionage Act during World War I.

Aside from the argument over the Amnesty Act, the attorney general’s office spent most of its filing arguing that Cawthorn wasn’t legally able to pursue his lawsuit, because the candidacy challenge process itself hasn’t taken place yet. Cawthorn can always appeal a decision from the state elections board, the filing noted.

“While Plaintiff has raised legal questions, no agency action has occurred, much less an adverse agency action that could give rise to injury,” the filing read, adding later: “Permitting the state matter to proceed does not in any way limit Plaintiff’s defenses or likelihood of success overall. Plaintiff is free to present any argument he is making here through that process.”

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