January 6

Did Madison Cawthorn Engage in 'Insurrection' by Reinforcing Donald Trump's Election Fantasy?

The North Carolina congressman's opponents argue that the 14th Amendment disqualifies him from seeking reelection.

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Madison Cawthorn, a 26-year-old real estate investor who was elected to represent North Carolina's 11th Congressional District in 2020, is one of many Republican politicians who have reinforced Donald Trump's fantasy that Joe Biden stole the presidential election. Based on Cawthorn's embrace of the "Stop the Steal" movement, his opponents are trying to prevent him from seeking reelection this year, arguing that he is disqualified from serving in Congress because he "engaged in insurrection" against the U.S. Constitution by inciting the Capitol riot.

That far-fetched claim, which implies that many of Cawthorn's colleagues in Congress are likewise barred from federal office, is getting a serious hearing because North Carolina has a low threshold for seeking to stop allegedly disqualified candidates from appearing on the ballot. When a challenger provides evidence to support a "reasonable suspicion or belief" that a candidate "does not meet the constitutional…qualifications for the office," the candidate has the burden of showing "by a preponderance of the evidence" that he is in fact qualified. According to the voters who challenged Cawthorn's candidacy, that means he "must prove that he was not involved in the insurrection of January 6, 2021."

South Texas College of Law professor Josh Blackman noted some of the legal obstacles to that lawsuit earlier this month. In addition to those issues, the case for viewing Cawthorn as an insurrectionist rests entirely on his rhetorical support for Trump's cause, which the challengers claim "led directly, intentionally, and foreseeably to the insurrectionists' violent assault on the Capitol." Even if you accept the idea that inflammatory rhetoric belongs in the same category as taking up arms against the government, nothing that Cawthorn said can fairly be construed as an endorsement of violence aimed at preventing Biden from taking office.

Section 3 of the 14th Amendment says "no person shall be a Senator or Representative in Congress…or hold any office, civil or military, under the United States…who, having previously taken an oath…to support the Constitution of the United States…shall have engaged in insurrection or rebellion against the same." It adds that Congress may "remove such disability" by a two-thirds vote of the House and Senate.

That provision originally targeted former supporters of the Confederacy, although Congress ultimately voted to let them serve in the House and Senate. Otherwise, the history of Section 3 does not illuminate its reach very much. In a 2020 paper that he described as "the first detailed account of Section Three," Indiana University law professor Gerard Magliocca noted that the provision "disappear[ed] from constitutional law" after the postbellum controversy over how to treat former Confederate leaders.

In January 2021, because Section 3 was suddenly in the news following the Capitol riot, Magliocca considered the provision's relevance to that event. In a Lawfare essay, he said he had been "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like."

Magliocca thought the Capitol riot itself was plausibly viewed as an "insurrection," since "the mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force." Furthermore, the criminal charges against some of the rioters indicated that they "intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government."

But Magliocca rejected the suggestion that legislators like Cawthorn could be expelled from Congress under Section 3 simply because they backed Trump's election fraud claims. "Without more, merely opposing the certification of electoral votes should not result in expulsion under Section 3," he wrote. "Simply voting to reject the certification of some electoral votes (or speaking to explain those votes) under the procedures set forth by the Electoral Count Act is not sufficient. The Speech and Debate Clause should be construed to immunize these actions from an extreme sanction like expulsion. Moreover, these members were participating in a long-established legal process and making their voices heard in protest, as others have in the past. They were not breaking the rules." The lawsuit challenging Cawthorn's candidacy nevertheless cites his participation in the electoral-vote challenges as evidence that he "engaged in insurrection."

The lawsuit also notes that Cawthorn promoted the "Stop the Steal" rally that preceded the Capitol riot. "January 6th is fast approaching," he tweeted two days before the rally. "The future of this Republic hinges on the actions of a solitary few. Get ready, the fate of a nation rests on our shoulders, yours and mine. Let's show Washington that our backbones are made of steel and titanium. It's time to fight."

Cawthorn delivered similar remarks at the rally, as did Rep. Mo Brooks (R–Ala.). Magliocca suggested that Brooks "might have a Section 3 problem depending on how his words are parsed and whether inciting an insurrection is tantamount to engaging in one." Does that mean Cawthorn has "a Section 3 problem"? Only if you think that lending credence to Trump's claims and urging his supporters to "make your voices heard" amounts to engaging in an insurrection.

"Wow, this crowd has some fight in it," Cawthorn told Trump's supporters. "The courage I see in this crowd is not represented on that hill….The Democrats, all the fraud they have done in this election, the Republicans hiding and not fighting—they are trying to silence your voice. Make no mistake about it: They do not want you to be heard."

Cawthorn contrasted his own courage with the pusillanimity of Republican colleagues who were ready to recognize Biden's victory. "At 12 o'clock today," he said, "we will be contesting the election. But my friends, bear in mind that there is a significant portion of our party that says we should just sit idly by and sit on our hands. They have no backbone!"

Cawthorn emphasized that he was serving a higher cause than one politician's desire to remain in power. "We're not doing this just for Donald Trump," he said. "We are doing this for the Constitution. Our Constitution was violated!" And he offered a solution: "My friends, I encourage you, go back to your states after today, hold your representatives accountable, make sure that they stood up for election integrity and make your voices heard."

Cawthorn's speech, which was full of the clichés that politicians favor and the baseless insinuations that Trump's supporters tend to echo, may have been insipid and irresponsible, but it was not an incitement to insurrection. That interpretation hinges on reading fight literally rather than metaphorically, construing "make your voices heard" as a call to violence, and assuming that when Cawthorn talked about "contesting the election," which in context clearly referred to the electoral-vote challenges, he really meant that Trump's supporters should break into the Capitol, assault police officers, and terrify members of Congress.

In an interview on The Carlos Watson Show after the riot, Cawthorn said his objections to electoral votes for Biden focused on Wisconsin, where "there were some constitutional infractions about the way they carried out their elections." But he disavowed some of Trump's wilder allegations, such as the idea that Dominion voting machines were rigged and the claim that trucks delivered shipments of fraudulently marked ballots. "I definitely didn't try to feed into that narrative," he insisted.

Cawthorn, of course, made no such distinction in his rally speech, which broadly decried "all the fraud" supposedly committed by Democrats. He clearly did "feed into that narrative" simply by appearing at a rally predicated on the notion that Trump actually won the election.

But another distinction Cawthorn drew in that interview—between peaceful protest and violent interference with congressional certification of the election results, which involved an attack on his own workplace—is not so easily dismissed. "Obviously, I think what happened on January 6 was despicable," he said. "I thought it was conducted by weak-minded men and women who are unable to check their worst impulses and had very little self-control. [I] completely condemn it."

As evidence that, contrary to such disclaimers, Cawthorn believes political violence is justified, the candidacy challenge quotes remarks that he made at a small gathering of Republicans in Macon County, North Carolina, last August. "The Second Amendment was not written so that we can go hunting or shoot sporting clays," he said. "The Second Amendment was written so that we can fight against tyranny." But this is the sort of boilerplate you often hear from politicians who support gun rights, and in context it's clear that Cawthorn was not talking about violently resisting Biden's election.

During the same appearance, Cawthorn did suggest that "if our election systems continue to be rigged, and continue to be stolen, then it's going to lead to one place, and it's bloodshed." But then he added: "As much as I am willing to defend our liberty at all cost, there is nothing that I would dread doing more than having to pick up arms against a fellow American. And the way we can have recourse against that is if we all passionately demand that we have election security in all 50 states." Again, this hardly counts as incitement to insurrection, let alone engaging in insurrection.

The people who are trying to disqualify Cawthorn from the ballot may believe he fully intended to provoke a riot while maintaining plausible deniability. I think that interpretation credits Cawthorn with more foresight and intelligence than he has thus far displayed in his fledgling political career. In any event, this is the sort of judgment that should be left to voters, who can decide for themselves whether they want to be represented by a Trump sycophant who happily warps reality in the service of his own ambitions.

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79 responses to “Did Madison Cawthorn Engage in 'Insurrection' by Reinforcing Donald Trump's Election Fantasy?

  1. When was he convicted of insurrecyion or rebellion?

    1. He was convicted by the press.

      1. For Jacob Sullum that's as good as the election audit by the popular press too.
        That's how he knows Trump's election claims are a 'fantasy', despite the fact that no investigation or full audit has been done.

        1. Yeah, I have never supported Trump's claims, and have denounced them multiple times, however, I also realize almost all of the courts didn't decide on the merits but on technicalities, that there hasn't been any full audits and even the partial ones have been resisted at all costs. That evidence that was supposed to be preserved by law was destroyed. That, although rarely reported, even despite resistance to audits and destroyed evidence some pretty questionable occurrences have been uncovered in key states of Wisconsin, Michigan, Pennsylvania, Georgia and Arizona. Does this mean that I believe Trump. Not at this time, but it also means I can no longer completely dismiss some of his questions as pure bullshit.

          1. A court ruled in Michigan after the election that the changes were illegal. My wife and I both received 4 applications unsolicited to vote absentee.

            They pulled off a good trick (Trump mistakenly helped) by making it a binary choice that “the election was stolen”. I’m not sure exactly what that means.

            But I do know that my Democrat Governor, who was at the time a rising star in the DNC who might have been nominated as VP if she was black, shut down our state and ruined the economy with some of the most ridiculous restrictions (you can’t go out on your boat, buy paint, do your own landscaping, etc) leading up to the election, while my democrat Secretary of State made illegal changes to election rules, and my state was one that had election night shenanigans in the well known corrupt city of Detroit to give our EC votes to Biden.

            But all that still doesn’t answer the question if “the election was stolen”.

            1. Don't sell Whitmer so short; she also killed thousands of old people following Handy Andy Cuomo's example.

              1. “Handy Andy Cuomo's”

                That’s a good one. You should use it on the other websites you’re assigned to.

                1. Just so we're clear, I'm pointing out that Whitmer is worse than is being said here.

            2. Just replace Michigan with Pennsylvania and it's the exact same story here too.

              Where's deelion mikejefftard to tell us it's just a coincidence?

              1. They continue to ignore anything that contradicts their beliefs.

          2. There was that partial audit in Arizona of Maricopa county that found around 50,000 ineligible votes if I recall correctly.

            1. Pyrus: you recall incorrectly. No audit revealed any such thing.

  2. It's just plain ridiculous. But it's clear that this is why they have been so insistent on calling Jan 6 "insurrection". I don't think it will succeed, but it's pretty nefarious. The people making these claims have to know that it's total bullshit.

    1. What did the Chinese call their little incident in 89?

      1. They got so tanked, they’ve forgotten!

      2. They did a good job steamrolling over the problem.

  3. No.

    Insurrection has clear definition in legal terms.

    1. A rising or rebellion of citizens against their government, usually manifested by acts of violence.

      Under federal law, it is a crime to incite, assist, or engage in such conduct against the United States.

      It's doesn't not apply.

      1. Like this one?

        http://twitter.com/nytimes/status/1267324491912278018

        any evidence Madison Cawthorn participated in this?

      2. Thats not the legal definition tony. Andrew Mccarthy at NRO has an article on it if you cared. He prosecuted the last major sedition case in the US.

        1. Newsflash: he doesn’t care.

        2. Where would I be without libertarians, always defending politicians on technicalities.

          1. Dumber than you already are. Which is a frightening prospect. Terri Schiavo had more brainpower at the end of her life than you’ve ever shown.

  4. Time to oil up the woodchippers. These fuckers have no qualms whatsoever about stealing an election.

    1. And Sullum is happy to help.

  5. words mean things dude.

    1. Not anymore.

      1. it's a shame chicks didn't do more to protect the definition of their gender

    2. Yep, and Merriam Webster will make sure that meaning lines up with the Party's current narrative.

      1. O’Brien smiles.

  6. Gotta love the editorializing in the headline.

    1. Rich Uncle Charles would take back his brown envelopes if it wasn't there.

    2. It's called "thinking past the sale". A technique used to make you accept something as true that isn't in evidence.

      1. Also known as lying.

        1. I prefer “propaganda”. More specific.

  7. I say we make this the new standard and throw everybody out.

  8. "a Trump sycophant who happily warps reality in the service of his own ambitions"

    Jesus Christ.

    1. Still no cure for TDS.

  9. Jacob Sulumn is a JAFNT (just another F'ing Never Trumper) with Stage 5 Trump Derangement Syndrome, a very serious affliction. Anytime he's saying something about Trump assume its complete BS as he is incapable of speaking truthfully when its about Trump. Stage 5 TDS victims all share this ailment. One day we may find a cure for Stage5 TDS but until then expect lunacy and insanity from stage 5 TDS victims like Jacob.

    1. Shoulda read one more comment.

  10. Magliocca (sp?) has this footnote in explaining how the Art. 3 issue never came up after the thing with the ex-Confederates:

    "The only other application of Section Three was to Representative Victor Berger, a member of the House of Representatives who was excluded from office after criticizing American involvement in World War I. See 6 CLARENCE CANNON, CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES 52-63 (1936); JOSH CHAFETZ, DEMOCRACY’S PRIVILEGED FEW 189-91 (2007). Berger’s case is a quirky example that predates modern First Amendment doctrine and is not addressed in this Article."

    Well, I would think this *was* a significant event.

    The House deferred to the courts, which first convicted then un-convicted Berger of supporting the Germans (by opposing the war, I think). If deferring to the courts is the precedent, then that may or may not be a good thing. Still, it's a precedent for all that it's worth. Modern 1A jurisprudence probably wouldn't allow Berger's conviction, which I suppose is the prof's point, so if deferring to the courts is the goal, then that narrows the scope of Art. 3, but if Congress can make independent judgments then they can limit speech more than the courts can.

  11. "The North Carolina congressman's opponents argue that the 14th Amendment disqualifies him from seeking reelection."

    If the progressives stayed up all night trying to think of new and better ways to convince the Republican fringe that "the system" is a giant conspiracy against them, they couldn't have come with anything much better than this.

    If the congressman broke the law, he should be prosecuted. If the congressman said some outrageous things, his opponents in the primary and the general election should use it against him in their campaigns.

    I wish I lived in North Carolina just so I could vote for the guy to stick it to the progressives who are trying to pull the plug on his candidacy. This just goes to show that the real threat to democracy is from progressives.

    1. I have to agree. This seems almost tailor-made to not only rile up all opposition but to cement every "deep state" idea that exists.

      To be honest, it seems like the January 6th riot is the only thing the Democrats have. If they allow it to fall into the relative obscurity that the display merits, then they have no real accomplishments to show in a term that they had full control of the government.

  12. From my perspective, trying to disqualify popular opponents from office can itself be a seditious act. It is an attempt to subvert the election system, by attempting to prevent his reelection through fiendish machinations.

    If the suggestion that Biden's election might have been achieved through shady means is outrageous and possibly criminal, then the politicians who spent the whole of the last administration calling Trump's election illegitimate should be treated similarly.

    1. As should the ones suggesting that 2022 is already illegitimate because it's using the same rules as 2020.

  13. Reason Magazine pimping for the left again.. It's not a 'fantasy' that government illegally by E.O. loosened voting integrity law that inviting theft and fraud to occur SO STOP LYING ABOUT IT!!!

    1. “SO STOP LYING ABOUT IT!!!”

      They can’t.

  14. Assuming your idiocy allows you to find the 1/6 protest "an insurrection", this sort of bullshit was certain to follow.
    The man's guilty of thought crimes and speech which is not favored by those who do.

    1. I wonder if the Reason writers that have played their part over the past 5 years are useful idiots, sellouts, or are really on board with what their coverage would inevitably support?

      1. To be honest, I hadn't looked: This was written by the TDS-addled steaming pile of shit Sullum.
        Sullum, stick your TDS up your ass to give your head some company.

      2. I wonder if reasons writers and editors ever read their comment pages, or is that too close to original research and investigative journalism?

        On the other hand, maybe that’s who our resident trolls are.

        1. Some do. They’ve responded at times, and at least once brought it up on twitter that I’ve seen, and I don’t even have a twitter account.

          There’s also a basic understanding of human nature, which means most of them read at least some of the comments. Unfortunately it seems to have lead to more contempt for the commentariat, instead of contemplation of why a bunch of life-long libertarians don’t consider them such.

        2. I certainly hope they do; the TDS-addled asshole Sullum needs to be addresses as the TDS-addled asshole he is.

  15. Trump attempted to overthrow the US government. That is not Treason and civil war.

    Therefore any person who, after that point, supports Trump in any way at all is giving aid and comfort to the enemy in a time of war and is also a Traitor. All Trump supporters should be arrested, tried (by special tribunals to eliminate the influence of Trump appointed and Trump promoted judges), convicted and sentenced to the highest penalty allowed for Treason. Then we will need 100% civil forfeiture of their assets, and use of the money to pay down the national debt.

    1. We could check Duranty's reports for the methods Joe used and repeat them here.

    2. Ironically; The blatant truth, and everyone with 1/4 of human logic knows-it, is that Trump tried to survive the rule of law (election law - democracy; none the less) against a Nazi-Regime who used the pandemic as an EXCUSE to practice MORE illegal Power-Mad Nazi-Nation building.

  16. This is one white boy who has failed upward within an inch of his life.

    1. But enough about Joe Biden.

    2. His legs don't work and he'd still kick your ass

      1. What do you get out of defending this gimpy assclown?

    3. His legs don't work and he can still run a mile faster than fat mikejefftard.

  17. I certainly hope they don't start gaming the system for their own electoral advantage.

    1. Sworn Oaths and the U.S. Constitution (The people's law over their government) isn't instilled by "electoral advantage". If USA citizens would stop thinking Democratic National Socialism and start thinking Constitutional Union of Republican States perhaps the real USA will start to appear again.

  18. If a person was trying to honestly discuss any of this then they would call it the Jan. 6 Capitol riot. That he (and Reason) continues to use the word "insurrection," despite no evidence that it actually fits the definition, shows that they are dishonestly reporting a narrative. It would be interesting to see them use the same terminology for all the times leftists have mobbed the congressional or other government buildings. If they're unwilling to do so, then they are dishonest partisan leftists

    1. IMO "failed coup" is the correct terminology.

      1. Your opinion does not mean much.

      2. IMO you're full of shit.

    2. I sort of wonder if this is not just a display of power. Nobody who has been paying attention really believes that an insurrection was attempted on 1/6. It was poor crowd control, and a few hooligans. I have literally seen worse at a Manchester United football game.

      If thousands of Trump voters staged an insurrection, it would not look like 1/6. One of the key features of conservatives is that a large percentage of them are military veterans who own lots of guns. They would show up armed, and with a plan. There would be logistics and resupply. A mentally ill person wearing a buffalo hat would not be in charge.

  19. So when do they start going after all the Not My President folks who said the 2016 election was stolen, and Hillary Clinton should have won?

  20. My first issue is this article is the author's choice to describe this tool Cawthorn as a "real estate investor" ... LOL!

  21. My second issue with the article is the author's attempt to imply Section 3 of the 14th Amendment is a relic of the civil war and not really applicable anymore.

    What other provisions of the Constitution does the author think are relics of their time and not really applicable anymore, I wonder?

  22. Let's get to this, shall we?

    There are no 'Trump Claims'--there are the millions of people who watched as ballot counting centers were 'closed' in the wee hours with Trump in a decisive lead, only to 'reopen' after they thought all observers were gone to inject hundreds of thousands of Biden votes.

    Those aren't 'clams'. That was broadcast. That was bragged about.

    Biden was installed upon a mountain of fake ballots.

    And the world knows it. The situation we see in the global political arena is a direct result of world leaders understanding that there is no US president.

    The only reason we keep hearing about the Jan. 6th insurrection is because the insurrectionists are so proud of it. They 'fortified' the election, bragged about their crime, and stopped the costitutional loyalist that were trying to thwart their insurrection.

    They failed, but have retained enough power and influence to hold the line.

    The likely result of the midterms, and the nation swinging back towards sanity are all that stand between Ukraine and Taiwan and WW3.

    If the insurrectionists manage to fortify the midterms, all is lost.

    1. ^THIS... Trump won by a landslide by verifiable *real* people -- That truth the left is projecting from so massively their propaganda is running overtime.

  23. If Cawthorne engaged in the famous insurrection that occurred prior to 1868, then the 14th Amendment definitely regulates his eligibility.

    If Cawthorne engaged in whatever it was that happened on January 6, 2021, then the 14th Amendment does not necessarily have any relevance to Cawthorne's elegibility. Only the Supreme Court can answer that. There is no constitutional requirement for a congressional candidate to not be an insurrectionist. Historical practice suggests that being so may be an important facilitator of election, even tho it is prohibited in the case of the insurrection called The US Civil War.

  24. If this has any merit then so does holding Bernie Sanders ineligible for the insurrection attempted by James Hodgkinson. Similar logic except that Hodgkinson committed a far worse atrocity than a protest demonstration gone wonky.

  25. Attorney Wally Zimolong won the case last week where the Appeals court in Pennsylvania ruled that ‘no excuse’ mail-in absentee ballots were not provided for in Pennsylvania’s constitution.

    We wrote about the fraud in the 2020 Election in Pennsylvania on November 11th, 2020.

    Here is some of what we reported:

    According to Pennsylvania’s election returns website, on election day President Trump won nearly two-thirds of all votes cast in the state.

    The President won 2.7 million votes compared to Biden’s 1.4 million votes. The President’s votes almost doubled Joe Biden’s!

    But what happened next was shocking. Pennsylvania began counting ballots by mail. There was no reporting on how many votes were outstanding at the end of election night. There was no reporting ever that we are aware of where the state announced how many votes were left to count after the election.

    They just kept counting.

    The state also allowed votes to come in for three more days after the election. Of course, these were all mail-in ballots. We do not know how many mail-in votes came in during these three days. The Republicans were not allowed to observe the counting of these votes even though a court order was in place demanding that the state do so. These actions go against Pennsylvania’s constitution which state that the voting process is to be determined by the legislature. The change in ruling was implemented by the executive and judicial branches. This is an important issue with the Trump campaign in their complaints against the state as they try to undo the injustices in Pennsylvania.

    Today [November 11, 2020] the state is reporting more than 2.5 million mail-in ballots. This number was never seen before in this state. As the mail-in ballots were counted, the state began cutting into the President’s 675,000 vote lead and eventually they gave the election to Biden. Biden won 2 million of the 2.5 million mail-in ballots.
    How could the President receive only one fifth of the mail in ballots after crushing Biden in in-person voting on Election Day?
    The answer is: this was basically impossible. And here’s why.

    When we looked at these statistics and we identified a pattern that is virtually mathematically impossible. The President won two thirds of the Election Day vote. But with the basic exception of Philadelphia, the President won around 80% of the vote in each county in the state. (See the blue line in the chart below showing the percent of total election day votes won by President Trump.) Philadelphia is so large that it offsets these numbers and brings the President’s results down to around 65% of the state’s votes on Election Day.

    What happened with the mail in votes is almost statistically impossible (See the orange line below). In almost every county throughout the state, the President was awarded a percent of votes 40% less than the percent the President won on election day (see the grey line below). If Trump won a county by 80% of the vote on Election Day, he won 40% of the mail-in vote for a county. If the President won 60% of the vote on Election Day, he won 20% of the mail-in vote in another county. This pattern occurred in almost every county with the only noticeable exception of Philadelphia, where the President only earned 30% of the vote on Election Day.

    These numbers are so consistent that they are almost certainly fraudulent. This NEVER happens in natural data sets.

    We were right on Election day 2020 and we are right now. Joe Biden was awarded 2 million of the 2.5 million absentee ballots in the state of Pennsylvania. Most all these ballots were illegitimate. This means President Trump won Pennsylvania by over 1 million legitimate votes.

  26. In Congress he is noisy, irascible, obstreperous, a prickling cucklebur on the arse of Nancy. Good. I like him. Matter of fact he represents my Congressional district. So I voted for him.

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