The state of North Carolina should not be able to ban U.S. Rep. Madison Cawthorn from running for reelection, one of his lawyers argued in federal court Tuesday, citing the First Amendment as well as an 1872 law offering amnesty to Confederate rebels after the Civil War.

The state shouldn’t even be able to start an inquiry into whether Cawthorn is qualified to run, said James Bopp, Cawthorn’s attorney.

Cawthorn’s eligibility has been challenged by a group of voters in his western North Carolina district. They say there’s reason to suspect he may have helped plan the Jan. 6, 2021, attack on Congress — or at least set the stage for the violence that day.

Cawthorn and others took actions that “led directly, intentionally, and foreseeably to the insurrectionists’ violent assault on the Capitol,” the complaint alleges, adding: “Representative Cawthorn has advocated for political violence both before and after the insurrection.”

If the process moves forward, Cawthorn — who spoke at the rally before the attack but has denied the allegations so far — could be forced to testify under oath if he wants to continue running for reelection.

Bopp said that shouldn’t be allowed to happen. He’s also representing Georgia Republican Rep. Marjorie Taylor Greene in a similar case.

“You can’t even consider whether to disqualify him,” he said. “You can’t do it at all.”

Bopp said only two groups of people should be able to decide who should or shouldn’t be in Congress: voters and Congress itself.

“In a democracy, where we have the right to vote, and we have the First Amendment, we leave a lot of things to the voters,” he said.

Cawthorn’s reelection isn’t as guaranteed now as it seemed when the challenge was first filed, several months ago, to keep him off the ballot.

Election Day in the 2022 primary is just two weeks away, and some top GOP leaders have endorsed one of his opponents, following Cawthorn’s recent remarks about fellow Republicans in Washington being involved in drug use and orgies.

But while Republicans have been angry about those comments, it was Cawthorn’s actions surrounding the Jan. 6 attack on Congress that angered Democrats and prompted this challenge that now has them all in federal court.

No matter the allegations, Bopp said, it’s up to voters to decide who they want representing them, and the only people who can remove a sitting member of Congress like Cawthorn from office are fellow members of Congress.

The U.S. Constitution states that in Congress, “each house shall be the judge of the elections, returns and qualifications of its own members.”

Congress voting to expel its own members is rare, but it has happened. In all of U.S. history only 20 members of Congress have ever been expelled, and it’s only happened twice since the Civil War.

Represented in court Tuesday by Raleigh attorney Press Millen, the challengers say the state has not just the ability to make a decision in this case, but the duty, because their challenge is based on the 14th Amendment. Its main purpose was to extend legal protections to newly free Black people after the Civil War, but its third section also bans insurrectionists from holding federal office. And part of the conditions for being let back into the Union during Reconstruction was for ex-Confederate states to ratify that amendment.

“North Carolina would not be a state today if it had not explicitly agreed to enforce Section 3 of the 14th Amendment,” Millen said.

While his challengers point to the 14th Amendment, however, Cawthorn’s defense has pointed to a pro-Confederate amnesty law passed a few years later, arguing it should also protect him.

That argument has already won once in court.

A federal trial judge who heard the case in March — Richard Myers, an appointee of Donald Trump — ruled in favor of Cawthorn. His ruling focused heavily on the argument about the Confederate amnesty act overriding the 14th Amendment. That set up Tuesday’s hearing in front of the 4th Circuit Court of Appeals, which covers the mid-Atlantic region of the country.

The three judges hearing arguments Tuesday were Julius Richardson, a Trump appointee from South Carolina; James Wynn, a Barack Obama appointee from North Carolina; and Toby Heytens, a Joe Biden appointee from Virginia.

They didn’t immediately issue a ruling Tuesday, and it was difficult to determine which way they might lean after they spent the afternoon peppering both lawyers with questions. At one point Wynn pressed Bopp on the logical extension of his argument that state officials have no authority to determine who can run for election.

“So, somebody from South Carolina can file for any seat they want to in North Carolina, never having lived there a day in their life, and there’s nothing North Carolina, or a court, can do about it?” Wynn asked.

Bopp said that’s right.

“Congress can do something about it, or the voters can do something about it,” he said.

Millen, however, said the only way Cawthorn’s argument makes sense is by interpreting a law, passed in the wake of the Civil War, as giving automatic amnesty to any American ever involved in any attack on the federal government in the future — even now, 150 years later — and overriding a constitutional amendment in the process.

“That defies logic and common sense,” he said.


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