Fourteenth Amendment (US Constitution)

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      The Jan. 6 Hearings Are Over. These 3 Things Must Happen Now.

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      On Thursday, in what was probably its final public hearing before the election, the House committee investigating the Jan. 6 attack on the Capitol revealed new details about former President Donald Trump. Those details included Secret Service records documenting his determination to join a mob he knew was armed and headed for violence.The hearings have provided an indispensable record of an attempted coup that failed but that, as Representative Liz Cheney pointed out, threatens to recur. As the committee waits for the (unlikely) testimony of Mr. Trump, the torch now passes to other actors who hold the power to achieve accountability for the Jan. 6 attack on the Capitol — and to prevent another one from happening.This task fits into three key areas.Potential DisqualificationThe added proof of Mr. Trump’s involvement in the events of Jan. 6 renews the question of whether elections officials and courts can disqualify him from holding public office under the Constitution. Section 3 of the 14th Amendment provides for the disqualification from office of any person who has “engaged in insurrection or rebellion against” the United States or who has “given aid or comfort to the enemies thereof.”The prospect of Mr. Trump being disqualified may sound unlikely, but it is not fanciful — a New Mexico county commissioner who participated in the Jan. 6 insurrection was recently removed on just this basis.On the question of whether Mr. Trump engaged in insurrection, the evidence presented throughout the hearings suggests that he knew the mob was armed when he riled them up on Jan. 6, wanted the magnetometers (metal detectors) to be taken down, expressed a wish to join the mob at the Capitol and then cheered the insurrectionists on while watching the violence on television. It also includes evidence referenced on Thursday that he singled out Vice President Mike Pence in a tweet after knowing of the violence underway.It is also fair to ask whether Mr. Trump’s actions provided “aid and comfort” to insurrectionists. That prospect is reinforced by his failure to act for 187 minutes, despite pleas from advisers, while the mob ran rampant. Indeed, he offered repeated words of support that day to the mob, tweeting, when the mob finally began dispersing, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.”For disqualification, voters would start the process by filing petitions to keep Mr. Trump off the ballot; elected officials and courts would then act on them.Disqualification under Section 3 involves several legal and factual challenges. For example, some say it would be better (or even necessary) to have enabling legislation passed by Congress. We strongly disagree, both because that’s not what the Constitution says and because courts have acted without such legislation over a period of more than 150 years. The committee should brush aside any legal misconceptions in its final report.In its report, the committee also should highlight the proof supporting Mr. Trump’s disqualification, scouring its now vast archive of over 1,000 interviews and millions of pages of documents and data to lay out the evidence about Mr. Trump and anyone else who may face consequences under the 14th Amendment (including members of Congress).A Road MapThe report could be modeled after the Watergate Road Map. That document laid out in painstaking detail the evidence of wrongdoing that an investigative body (there, a grand jury) had collected. It consisted of an inventory listing the evidence and then attached pieces of proof — whether it was a document, witness transcript or something else.In that case a grand jury was sending evidence to the House. In this case, it is the House that would be making evidence available to others. But the principle is the same: The committee should compile all the relevant evidence upon which 14th Amendment decision makers can rely.A similar road map may also be helpful to federal and state prosecutors. A formal criminal referral is less essential than laying out the relevant evidence for federal prosecutors to draw upon in their various investigations and for local ones like Fani Willis, the district attorney for Fulton County, Ga.The committee’s evidence on Thursday suggesting potential obstruction of justice by members of the Secret Service and White House staff will also be in the hands of federal prosecutors to resolve. In one of the more notable moments of the hearing, Representative Adam Schiff stated that evidence strongly suggested “certain White House and Secret Service witnesses” had falsely testified that they were not aware of the risk of violence.The committee’s report should also inform another group of regulators: bar officials. This was an attempted coup that utilized not tanks and guns but statutes and regulations, with lawyers playing a central role. Some bar associations have a practice of not opening investigations based on public complaints based on media reports. To break through that barrier, the committee should make formal disciplinary referrals accompanied by presentations of evidence.The American PeopleOne final handoff is perhaps most important of all: to voters. Well over 300 midterm candidates have embraced “the Big Lie” about the 2020 election being stolen. The committee has repeatedly warned of the danger this election-denial movement poses. As Ms. Cheney said on Thursday, “another Jan. 6 could happen again if we do not take necessary action to prevent it.”But the test of the committee’s work and its political impact will not end with the midterms. Some “stop the steal” candidates will win their races, and the postelection season will quickly pivot to the 2024 election.The baton is passing from the committee to others who have the power to take action on its work. That handoff is not only to election officials, prosecutors and judges. It is to all of us. Our democracy may well depend on what we do with it.Norman Eisen served as special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. Danielle Brian is the executive director of the Project on Government Oversight. E. Danya Perry is a former federal prosecutor and a New York State corruption investigator.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Supreme Court Is the Final Word on Nothing

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      The U.S. Constitution contains several idle provisions: words, phrases and clauses that have little to no bearing on our constitutional order as it currently exists.Let’s start here: Article 3 of the Constitution gives the Supreme Court “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” That part is obviously in effect, although most cases between states occur in the lower federal courts established by Congress. The Constitution then states that in all other cases, “the Supreme Court shall have appellate jurisdiction.” This, too, is in full effect.But then the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”This is where it gets interesting. The court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court’s appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said with regard to the Bank Bill of 1791, “An interpretation that destroys the very characteristic of the government cannot be just.”But this is nearly a moot point. The modern Congress has largely relinquished its power to regulate and structure the court. The final clause of Article 3, Section 2 is not quite a dead letter, but it is close.What is a dead letter (and which I’ve also written about before) is the Guarantee Clause of the Constitution, which states thatThe United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.The reason for the clause is straightforward. “The more intimate the nature of such a Union may be,” Madison wrote in Federalist No. 43, “the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.”But neither Congress nor the courts has ever said, with any precision, what it means for the United States to guarantee to every state a “republican form of government.” The most we have is Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.Since Reconstruction, however, no Congress has wanted to use the Guarantee Clause to protect the rights and liberties of Americans. It’s a vestigial part of our constitutional history, atrophied from disuse.The same goes for sections 2 and 3 of the 14th Amendment. Section 2 states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” It then specifies that if the right to vote for federal office is “denied” or “in any way abridged, except for participation in rebellion” to “any of the male inhabitants” of such a state, then “the basis of representation therein shall be reduced” in proportion to the denial in question.Section 3 also deals with representation. It states thatNo person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.The purpose of section 2 was to invalidate the Three-Fifths clause of the Constitution and to prevent state governments from disenfranchising Black voters. And the purpose of section 3 was to prevent former Confederate leaders from holding state and federal office. But while the 14th Amendment gives Congress the power to enforce its provisions by “appropriate legislation,” Congress has never exercised its ability to deny representation to states that violate the right of citizens to vote, nor has it used its ability to disqualify those lawmakers who have engaged in acts of rebellion or insurrection. In the wake of Jan. 6, Representatives Cori Bush and Alexandria Ocasio-Cortez called on Congress to investigate and expel members who aided the attack, but their demands went nowhere.It’s here that you can see why I think it’s important to talk about these seemingly idle provisions. As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the counter-majoritarian institutions of the American political system, cloaking their views in a distorted version of our Constitution, where self-government means minority rule and the bugaboos of right-wing culture warriors are somehow “deeply rooted” in our “history and traditions.”But the Republic is not defenseless. The Constitution gives our elected officials the power to restrain a lawless Supreme Court, protect citizens from the “sinister legislation” of the states, punish those states for depriving their residents of the right to vote and expel insurrectionists from Congress.They are drastic measures that would break the norms of American politics. They might even spark a constitutional crisis over the power and authority of Congress.But let’s not be naïve. The norms of American politics were shattered when Donald Trump organized a conspiracy to subvert the presidential election. They were shattered again when he sent an armed mob of supporters to attack the Capitol and stop Congress from certifying the votes of the Electoral College. And they were shattered one more time in the early hours of the next day, when, even after all that, hundreds of his congressional allies voted to overturn the election.As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy — and if they don’t, whether it is finally time for us to find ones who do.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Legal Effort Expands to Disqualify Republicans as ‘Insurrectionists’

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      New lawsuits target Representatives Paul Gosar and Andy Biggs, as well as Mark Finchem, a candidate for Arizona secretary of state, claiming they are barred from office under the 14th Amendment.A legal effort to disqualify from re-election lawmakers who participated in events surrounding the Jan. 6, 2021, attack on the Capitol expanded on Thursday, when a cluster of voters and a progressive group filed suit against three elected officials in Arizona to bar them under the 14th Amendment from running again.In three separate candidacy challenges filed in Superior Court in Maricopa County, Ariz., voters and the progressive group, Free Speech for People, targeted Representatives Paul Gosar and Andy Biggs and State Representative Mark Finchem, who is running for Arizona secretary of state with former President Donald J. Trump’s endorsement.It was unclear whether the challenges would go anywhere; an initial skirmish, also led by Free Speech for People, failed to block Representative Madison Cawthorn’s candidacy in North Carolina. But they were the latest bids to find a way to punish members of Congress who have encouraged or made common cause with those who stormed the Capitol on Jan. 6.In all three suits, the plaintiffs claim that the politicians are disqualified from seeking office because their support for rioters who attacked the Capitol made them “insurrectionists” under the Constitution and therefore barred them under the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy.That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”A separate action is being pursued by a Democratic-aligned super PAC against Senator Ron Johnson and Representatives Tom Tiffany and Scott Fitzgerald, all Wisconsin Republicans.And on Friday, a federal judge in Atlanta will hear Representative Marjorie Taylor Greene’s effort to dismiss a case filed against her to strike her from the ballot in Georgia. Unless the judge, Amy Totenberg of Federal District Court for the Northern District of Georgia, issues a temporary restraining order, an administrative law judge is set to hear arguments next Wednesday on whether Ms. Greene should be removed from the ballot.Ron Fein, the legal director of Free Speech for People, said the effort was putting pressure on the Justice Department and the House committee investigating the Jan. 6 attack to take action against individual members of Congress — and to find remedies in court.“Our goal is to reach a ruling by a competent state tribunal, which of course can be appealed to the highest levels if need be, that these individuals are in fact disqualified under Section 3 of the 14th Amendment,” he said. “These are even stronger cases. We’re not going after people who have a tenuous connection to the insurrection.”James Bopp Jr., a conservative election lawyer who is defending Ms. Greene and Mr. Cawthorn, said the groups ultimately could take action against as many as two dozen Republican lawmakers, hoping to establish some legal precedent for trying to bar Mr. Trump from the presidential ballot in 2024. And with enough test cases, one might succeed.“Judges do make a difference,” he said.Mr. Gosar, Mr. Biggs and Mr. Finchem did not immediately respond to requests for comment.The legal fight in the cases has come down to two questions: What is an insurrectionist, and did Congress in 1872 not only grant amnesty to those who supported and fought for the Confederacy but also to those who would take part in future insurrections, effectively nullifying Section 3?In Mr. Cawthorn’s case, a federal judge appointed by Mr. Trump blocked an inquiry into the congressman’s role in the Jan. 6 attack by ruling that the Amnesty Act of 1872 did indeed confer amnesty on all future insurrectionists.The judge, Richard E. Myers II, focused on a caveat within Section 3 of the 14th Amendment that said “Congress may by a vote of two-thirds of each House remove” the disqualification — or “disability” — for insurrection. The Amnesty Act was passed by that wide of a margin.That ruling remains in dispute and is on appeal.In the run-up to Jan. 6, Representative Andy Biggs repeatedly posted the falsehood that President Donald J. Trump had won the election.Cooper Neill for The New York Times“The waiver of disability is the functional equivalent of a pardon,” said Gerard N. Magliocca, a constitutional law professor at the Indiana University Robert H. McKinney School of Law who has studied the insurrection clause. “Pardons by presidents or governors cannot be for the future. You cannot license future illegality.”The lawyers bringing the new suits believe they have a stronger case to show that the elected officials in question are insurrectionists.In the run-up to Jan. 6, Mr. Gosar and Mr. Biggs repeatedly posted the falsehood that Mr. Trump had won the election. Mr. Gosar organized some of the earliest rallies to “Stop the Steal,” the movement to keep Mr. Trump in office, coordinating with Ali Alexander, a far-right activist, and with Mr. Finchem.Capitol Riot’s Aftermath: New DevelopmentsCard 1 of 5The effort to disqualify “insurrectionists.” More

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      Madison Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectionist’?

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      The challenge to Representative Madison Cawthorn’s re-election bid could set a precedent to challenge other Republicans who encouraged the Jan. 6 attack.WASHINGTON — A group of lawyers is working to disqualify from the ballot a right-wing House Republican who cheered on the Jan. 6 rioters unless he can prove he is not an “insurrectionist,” disqualified by the Constitution from holding office, in a case with implications for other officeholders and potentially former President Donald J. Trump.The novel challenge to the re-election bid of Representative Madison Cawthorn, one of the House’s brashest supporters of Mr. Trump and the lie that the 2020 election was stolen, could set a precedent to challenge other Republicans who swore to uphold the Constitution, then encouraged the attack.While the House committee investigating the assault on the Capitol has so far been unsuccessful in its effort to force key members of Congress to cooperate with the inquiry, the North Carolina case has already prompted a legal discussion — one that is likely to land in court — about what constitutes an insurrection, and who is an insurrectionist.And for the first time, a lawmaker who embraced the rioters may have to answer for his actions in a court of law.“I don’t think we can have those persons who have engaged in acts of insurrection elected to office and serving in office in violation of their constitutional duties and oath,” said John R. Wallace, one of the lawyers on the case and a campaign finance and election law expert in Raleigh, N.C. He added, “It should not be difficult to prove you are not an insurrectionist. It only seems to be difficult for Madison Cawthorn.”Cases challenging the legitimacy of a candidate before election boards usually hinge on a candidate’s age, legal residency, place of birth or citizenship status, or the legitimacy of signatures in a candidacy petition.This case revolves around the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy who were streaming back to Washington to reclaim their elective offices — and infuriating unionist Republicans.That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”Mr. Cawthorn, 26, who is in his first term in Congress, has denounced the case as an egregious misreading of the 14th Amendment, but he has retained James Bopp Jr., one of the most prominent conservative campaign lawyers in the country, as counsel.Mr. Bopp, in an interview, declared the matter “the most frivolous case I’ve ever seen,” but allowed that what he called an “unethical” exploitation of North Carolina law by “competent” lawyers could pose a real threat to Mr. Cawthorn — and by extension, to others labeled “insurrectionists” by liberal lawyers.“This is the real threat to our democracy,” he said. “Just by bringing the complaint, they might jeopardize a member of Congress running for re-election.”“They have multiple targets,” he added. “It just so happens that Madison Cawthorn is the tip of the spear.”That is because North Carolina’s election statute offers challengers a remarkably low bar to question a candidate’s constitutional qualifications for office. Once someone establishes a “reasonable suspicion or belief” that a candidate is not qualified, the burden shifts to the officeseeker to prove otherwise.If Mr. Cawthorn is labeled an “insurrectionist,” that could have broader ramifications. Other Republican House members, such as Marjorie Taylor Greene of Georgia, Mo Brooks of Alabama, Paul Gosar of Arizona, and Lauren Boebert of Colorado, face similar accusations, but their state’s election laws present higher hurdles for challenges to their candidate qualifications. If one of their colleagues is disqualified for his role in encouraging the rioters, those hurdles might become easier to clear.The lawyers challenging Mr. Cawthorn’s eligibility are using an amendment last invoked in 1920, when Representative Victor L. Berger, an Austrian-American socialist, was denied his seat representing Wisconsin after criticizing American involvement in World War I.If nothing else, the lawyers, including two former justices of the North Carolina Supreme Court, want to depose Mr. Cawthorn as part of discovery to question his actions before, during and after the attack on the Capitol.“There is, of course, much that we don’t know, and the statute allows discovery by deposition and the production of records,” Mr. Wallace said.There is much that is known. Whether it makes Mr. Cawthorn an “insurrectionist” would have to be determined by North Carolina’s Board of Elections, or more likely, by the state’s courts, where the board might punt the matter.Weeks after the 2020 election, Mr. Cawthorn told a conservative gathering to “call your congressman” to protest the results, adding, “you can lightly threaten them.” He promoted the “Save America” rally behind the White House on Jan. 6, writing on Twitter, “the future of this Republic hinges on the actions of a solitary few,” then adding “It’s time to fight.” At the rally, he riled the crowd from the stage with talk of election “fraud.”He later called those jailed for storming the Capitol “political hostages” and “political prisoners” that he would like to “bust” out of prison.A mob rushing the Capitol on Jan. 6 were met with tear gas.Kenny Holston for The New York Times“The Second Amendment was not written so that we can go hunting or shoot sporting clays. The Second Amendment was written so that we can fight against tyranny,” he would later say in Franklin, N.C. He added, “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.”Key Figures in the Jan. 6 InquiryCard 1 of 17The House investigation. More

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      Does Jan. 6 Disqualify Some Republicans From Re-election?

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      Representative Madison Cawthorn has breezily dismissed a candidacy challenge filed by voters in his home state, North Carolina, seeking to bar him from re-election to the House of Representatives based on his role in the events of Jan. 6.The plaintiffs, a spokesman from the pro-Trump Republican’s office said, are “comically misinterpreting and twisting the 14th Amendment for political gain.”Mr. Cawthorn is being too quick to scoff. The 14th Amendment provision in question, while little known and not employed since 1919, is a close fit for his conduct around Jan. 6 — as well as that of at least a half-dozen Republican colleagues who the organization spearheading the challenge, Free Speech For People, suggests will be next.Passed in the wake of the Civil War to prevent former rebels from serving in Congress, Section 3 of the 14th Amendment states: “No person shall be a Senator or Representative in Congress … who, having previously taken an oath, as a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”The critical point to understand is that Section 3 added a qualification to hold office, one of the very few in the Constitution. The others are that members of the House must be at least 25, a U.S. citizen for seven years and live in the state the individual represents. It is no different in this respect from the qualification that the president be at least 35 and a natural-born citizen.So, if the voter challenge succeeds in establishing that Mr. Cawthorn engaged in “insurrection or rebellion,” he would be as ineligible to serve in Congress as if it were revealed that he is 24 years old. Under North Carolina law, once challengers advance enough evidence to show reasonable suspicion that a candidate is not qualified, the burden shifts to the would-be candidate to demonstrate the contrary.The North Carolina State Board of Elections will create a five-member panel composed of people from counties in the new district in which Mr. Cawthorn intends to run (which is more Republican leaning than his current one). The panel’s decision could be appealed to the entire State Board of Elections, and after that to the state’s court system. The board’s decision will be delayed until after a state court rules on a separate redistricting challenge in North Carolina. But the issue will have to be resolved in time for the state’s primary election, currently set for May, so the normal Trump playbook of stalling until the issue becomes moot is not an option.The key question in the challenge will be whether Mr. Cawthorn’s acts of support for the Jan. 6 uprising rise to the level of engaging in an insurrection against the government.Here is what the first-term congressman did, based on public reports and allegations in the challenge: In advance of the riot at the Capitol, he met with planners of the demonstrations and tweeted that “the future of this Republic hinges on the actions of a solitary few … It’s time to fight.” He spoke at the pre-attack rally at the Ellipse, near the White House, where he helped work the crowd into frenzy, saying the crowd had “some fight in it” and that the Democrats were trying to silence them. And in the aftermath of the mob violence, he extolled the rioters as “political hostages” and “political prisoners,” and suggested that if he knew where they were incarcerated, he would like to “bust them out.”The constitutional term “insurrection” is less cut-and-dried than, say, whether a candidate is 25 years old. In other contexts, courts have defined it as a usually violent uprising by a group or movement acting for the purpose of overthrowing the legitimately constituted government and seizing its powers. That accurately describes the collective pro-Trump effort to undermine the certification of the November 2020 election.In the hours after the riot, Mitch McConnell, then the Senate majority leader, described the attack as a “failed insurrection”; one of President Trump’s own lawyers in the impeachment trial stated that “everyone agrees” there was a “violent insurrection”; and Mr. Cawthorn himself voted for a resolution that described the attackers as “insurrectionists.” He’ll be hard pressed to run from that label now.As for whether Mr. Cawthorn “engaged” in the insurrection, in an 1869 case, the North Carolina Supreme Court interpreted that term in Section 3 to signify “voluntarily aiding the rebellion, by personal service, or by contributions … of anything that was useful or necessary” to it. Even before more facts are developed in the case — including a possible deposition of Mr. Cawthorn — the tweet exhorting demonstrators to fight because the future of the Republic hinges on it seems plainly designed to aid the enterprise.The indictment of Stewart Rhodes, the leader of the far-right Oath Keepers, and 10 other Jan. 6 participants on seditious conspiracy charges reinforces the notion that the crimes of Jan. 6 were not simply offenses of property or disorder but were attacks against the government itself, the same core idea as with insurrection.If the North Carolina courts rule against him, expect Mr. Cawthorn to make a quick dash to the U.S. Supreme Court, arguing that it has final authority to interpret the federal constitutional term “insurrection.” At that point, a conservative majority that includes three justices appointed by Donald Trump might well sympathize with Mr. Cawthorn.But while it may be rare, the North Carolina voter challenge is no joke. The challengers have a strong case, and Mr. Cawthorn would be foolish to take it lightly.Harry Litman (@harrylitman), a former U.S. attorney and deputy assistant attorney general, teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science. He is also host of the podcast Talking Feds.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Cori Bush and AOC Are Right About Jan. 6 and 1866

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      When, in the early morning hours of Jan. 7, Congress finally certified the 2020 Electoral College count, more than 140 Republican members of Congress had voted, in one way or another, to reject the outcome. They had embraced the spirit of the mob that stormed the Capitol the day before, even if they had not physically joined it.With that said, there was a smaller number of congressional Republicans who may have gone further than simply casting a vote the way President Donald Trump wanted them to, in the days leading up to Jan. 6. According to a new report by Hunter Walker in Rolling Stone, “Multiple people associated with the March for Trump and Stop the Steal events that took place during this period communicated with members of Congress throughout this process.”Walker’s sources, two unnamed organizers who say they helped plan the rallies, claim that Representatives Marjorie Taylor Greene, Andy Biggs, Paul Gosar, Lauren Boebert, Mo Brooks, Madison Cawthorn and Louie Gohmert or members of their staffs spoke to or collaborated with pro-Trump activists in the days, weeks and months before the attack on the Capitol. Gosar, a staunch defender of the former president, reportedly told potential rally goers that Trump would give them a “blanket pardon” for their activities.Greene, Gohmert, Boebert, Brooks, Cawthorn and Biggs have all pushed back strongly on the Rolling Stone report, which appeared over the weekend. Gosar called it “categorically false and defamatory.”“There was a meeting at the White House about voter fraud and election theft activity,” Brooks said. “But I have no recollection of any kind of organizational activity regarding the speeches on Jan. 6.”For his part, Gohmert released a statement Monday: “No one in my office, including me, participated in the planning of the rally or in any criminal activity on Jan. 6. We did not attend or participate at all.”Boebert also issued a statement on Monday: “Let me be clear. I had no role in the planning or execution of any event that took place at the Capitol or anywhere in Washington, D.C. on Jan. 6th.”The organizers who spoke to Rolling Stone apparently plan to testify before the Jan. 6 select committee to provide more details about what they say was collaboration between Republican lawmakers and the pro-Trump activists who planned the events that ultimately led to the attack.In the meantime, some Democrats are already calling for their removal from office.“Any member of Congress who helped plot a terrorist attack on our nation’s Capitol must be expelled,” Representative Alexandria Ocasio-Cortez wrote on Twitter. “Those responsible remain a danger to our democracy, our country, and human life in the vicinity of our Capitol and beyond.”Likewise, Representative Cori Bush of Missouri said on Twitter that the House must “investigate and expel members of Congress who helped incite the deadly insurrection on our Capitol.”Bush had actually introduced a House resolution for this purpose just days after the attack. “There is no place in the people’s House for these heinous actions,” she said at the time, referring to “members who attempted to disenfranchise voters and incited this violence.”“I firmly believe,” she went on, “that these members are in breach of their sworn Oath of Office to support and defend the Constitution of the United States. They must be held accountable.”They weren’t. There was simply no appetite, among House leadership, for such drastic and decisive action. There still isn’t. But it was a serious demand, and we should take it seriously.Bush’s resolution rests on Section 3 of the 14th Amendment to the Constitution, which cleared Congress in 1866 and was ratified in 1868:No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.In plain English, Congress has the power and authority to expel from office any constitutional officer who engages in sedition and takes up arms against the Constitution of the United States.The original context for this, obviously, was the Civil War and its immediate aftermath. By the summer of 1865, President Andrew Johnson, a conservative unionist from Tennessee, had taken charge of Reconstruction with a plan to restore the Southern states as equals, their political and constitutional status essentially unchanged from what it was before the war.Under Johnson’s arrangement, the former Confederate states could operate under their antebellum constitutions, the end of slavery notwithstanding. All-white electorates could elect all-white legislatures and send all-white delegations to Washington. Some of these men were, like Johnson, conservative unionists. Many more were former rebel leaders. Alexander Stephens — of the infamous Cornerstone Speech — was elected to represent Georgia in the Senate in 1866 after he was arrested and imprisoned as the former vice president of the Confederacy in 1865.Either way, neither group supported anything like fundamental change to the social and political fabric of the South. If seated, these delegations to Congress would stymie and block any Republican effort to reconstruct the South as an open society with free labor.Indeed, had every Southern representative been seated, Republicans would not have had the votes to get the 14th Amendment through Congress in the first place, on account of the two-thirds majority requirement for passage.Worse than potential obstruction was the real chance that the South would re-enter Congress with as much, or more, political power than it had before the war. The 13th Amendment had abolished chattel slavery, which effectively gutted the three-fifths compromise. And thanks to Johnson, recalcitrant Southern elites could form new governments without extending the vote to free and recently freed Blacks. When the 14th Amendment repealed the three-fifths compromise outright, the effect would be to give the South a considerable bonus in Congress.“Beginning with the reapportionment of 1870,” the legal scholar Garrett Epps writes in “The Antebellum Political Background of the Fourteenth Amendment,” “the Southern states would receive full representation for each freed slave rather than a mere sixty percent, a change that would give the region thirteen more House seats and electoral votes without the extension of minimal political rights, much less the franchise, to the freed slaves who formed the basis of the representation.”To head off this threat, Republicans took two steps. First, they refused to recognize, much less seat, members from the states readmitted under Johnson’s policies. And then, looking to the future, they wrote this prohibition on former Confederate leaders into the Constitution as Section 3 of the 14th Amendment. Republicans would prevent the re-ascendence of this “slave power” with a blockade of federal office deployed against Southern elites.If the ultimate goal of Section 3, in other words, was to preserve the integrity of Congress against those who would capture its power and plot against the constitutional order itself, then Representative Bush is right to cite the clause against any members of Congress who turn out to have collaborated with the plotters to overturn the election and whose allies are still fighting to “stop the steal.”There is a movement afoot to undermine electoral democracy for the sake of a would-be strongman. We have the tools to stop it. Congress, and by this I mean the Democratic majority, should use them.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Raphael Warnock and the Solitude of the Black Senator

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      In late January 1870, the nation’s capital was riveted by a new arrival: the Mississippi legislator Hiram Rhodes Revels, who had traveled days by steamboat and train, forced into the “colored” sections by captains and conductors, en route to becoming the first Black United States senator. Not long after his train pulled in to the New Jersey Avenue Station, Revels, wearing a black suit and a neat beard beneath cheekbones fresh from a shave, was greeted by a rhapsodic Black public. There were lunches with leading civil rights advocates; daily congratulatory visits from as many as 50 men at the Capitol Hill home where he was the guest of a prominent Black Republican; and exclusive interracial soirees hosted by Black businessmen, including the president of the Freedman’s Savings Bank.

      1870-1871
      Hiram Rhodes Revels
      Mississippi More