There are two hurdles to disqualification. Both raise unique questions for which there is little legal guidance.
First, defining “insurrection” is not straightforward. The relevant law in the U.S. Code does not help much. Section 2383 of Title 18 proclaims that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” To date, the defendants in the Jan. 6 prosecutions have not been charged with “rebellion or insurrection,” but that does not prevent prosecutors from sustaining such a charge against insurrectionists.
Second, Section 3 has no established mechanism for enforcement. Could Congress pass a resolution disqualifying some of its members? Could a political opponent of someone who assisted the Jan. 6 mob or who plotted to discard states’ electoral votes sue? We may find out soon.
A group called Free Speech for People has filed a case with the North Carolina State Board of Elections seeking a ruling that “Rep. Madison Cawthorn, a candidate for North Carolina’s 13th Congressional District, does not meet the federal constitutional requirements for a Member of the U.S. House of Representatives and is therefore ineligible to be a candidate for such office.”
The plaintiff states, “Challengers have reasonable suspicion that Rep. Cawthorn was involved in efforts to intimidate Congress and the Vice President into rejecting valid electoral votes and subvert the essential constitutional function of an orderly and peaceful transition of power.” The complaint further alleges that there is reasonable suspicion that “Cawthorn was involved in either planning the attack on January 6, or alternatively the planning of the pre-attack demonstration and/or march on the Capitol with the advance knowledge that it was substantially likely to lead to the attack, and otherwise voluntarily aided the insurrection.”
We know that Cawthorn spoke at the “Stop the Steal” rally before the mob marched on the Capitol. “This crowd has some fight in it,” he said. “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.”
But we have no proof, as Cawthorn’s challengers allege, that according to reports “he met with planners of the January 6 demonstration, and possibly of the assault on the Capitol, beforehand.” If the case goes forward, discovery will proceed, and the challengers write that they “intend to depose Rep. Cawthorn before the hearing, and request subpoenas for witnesses and documents, including documents that Rep. Cawthorn or his staff may possess involving the planning of the January 6 events that could shed light on his qualification for office under Section Three.”
Free Speech for People will need to navigate around a host of issues, including questions about its standing to bring such a challenge. Whatever the North Carolina election board decides, the case will almost certainly wind up in state or federal court.
A ruling that the plot to overturn the election results meets the definition of “insurrection” would open the floodgates to suits against any members of Congress involved in the plot. Prime targets would include other speakers at the “Stop the Steal” rally and members who texted the White House chief of staff about the scheme to block President Biden from assuming office.
Brookings Institution’s Norman Eisen, who served as counsel to House impeachment managers during President Donald Trump’s first impeachment, welcomes the suit. “We need to explore all avenues of accountability against insurrectionists or those who gave them aid or comfort,” Eisen tells me. “The petition seeks more factual development to determine whether the congressman fits in those categories, and that is important.”
Eisen adds that “the Jan. 6 Committee investigation, hearings and reports may have something to say about who if anyone in Congress — or the White House — falls within the parameters of this constitutional prohibition.” Based on the committee’s finding, Eisen argues, “Accountability is coming in various ways, and actions like [the Cawthorn claim] help bring it closer.”
Democratic election lawyer Marc Elias suggests in a piece for Democracy Docket other means to disqualify insurrection plotters: “Nonpartisan career lawyers [at the Justice Department] should evaluate not just the criminal liability of people involved in the insurrection, but constitutional disqualification under the lower civil standard of proof,” he writes. “However, if the Department fails or refuses to do so, Congress and private litigants will need to step in to vindicate this constitutional disqualification.”
After the Jan. 6 committee releases its findings, Congress may choose to take up disqualification. Members who played a role in the coup attempt should lawyer up. A host of litigants likely will head to court, threatening these Republicans’ midterm campaigns and raising a possible barrier to a 2024 presidential run for the insurrection’s chief instigator.