By Marshall Cohen, CNN
A federal appeals court ruled Tuesday that a post-Civil War amnesty law doesn’t protect future insurrectionists, a legal victory for the liberal activists who have tried to disqualify Republican lawmakers based on their role in the January 6 attack on the US Capitol.
The decision from the Fourth Circuit Court of Appeals came in a case involving Rep. Madison Cawthorn, the controversial North Carolina Republican who lost his GOP primary last week. The court’s decision has little impact on Cawthorn, because he’s no longer a candidate for elected office, but the precedent could provide a boost to similar constitutional challenges in the future.
Earlier this year, a coalition of constitutional experts and liberal activists challenged Cawthorn’s eligibility to run for reelection based on the “disqualification clause” of the 14th Amendment, which says any officeholder who supports an insurrection is banned from returning to office.
Cawthorn fended off the challenge by arguing that the Amnesty Act of 1872 essentially repealed the “disqualification clause,” and therefore shielded him from the challenge. A federal judge in Wilmington, North Carolina, agreed with that view and shut down the state-level challenge.
A three-judge appeals panel overturned that decision Tuesday in a narrow but consequential ruling, because it’s the first federal appeals court to address this novel constitutional question.
“Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment’s eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment,” Judge Toby Heytens wrote for the court’s majority, later adding that, “the 1872 Amnesty Act does not categorically exempt all future rebels and insurrectionists.”
The decision undermines a key argument that Cawthorn and others — like GOP Rep. Marjorie Taylor Greene of Georgia — have used to defend themselves against the January 6-releated challenges. The groups behind these challenges say they’ll target former President Donald Trump if he runs again in 2024, so Tuesday’s ruling could have far-reaching implications.
“This ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of January 6, 2021 — including Donald Trump — from the consequences of their actions under the Fourteenth Amendment, and provides no basis to block state proceedings seeking to exclude insurrectionists from the ballot,” Free Speech For People, the constitutional advocacy group that challenged Cawthorn and Greene, said in a statement.
The appeals court said it would “express no opinion” on whether Cawthorn engaged in rebellion or insurrection — punting on one of the underlying questions in the case. Cawthorn, Greene and other Republicans who have faced these challenges have all denied any wrongdoing related to January 6 and say the candidacy challenges are a partisan ploy to usurp the will of the voters. A Georgia state judge ruled earlier this month that Greene was qualified to run for re-election, rejecting the challenge after a landmark all-day hearing where Greene testified under oath.
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