The constitutional term ‘rebellion’ is less trite than, say, whether a candidate is 25 years old. In other contexts, courts have defined it as an ordinarily violent insurrection by a group or movement that acts with the aim of overthrowing the legitimately formed 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 riots, Mitch McConnell, then the Senate majority leader, described the attack as a “failed insurrection”; one of President Donald Trump’s own attorneys in the impeachment trial stated that “everyone agrees” that there was a “violent uprising”; and Mr. Cawthorn himself voted in favor of a resolution describing the attackers as “insurgents.” He’s going to have a hard time walking away from that label now.
As to whether Mr. Cawthorn was “engaged” in the insurrection, in an 1869 case, the North Carolina Supreme Court interpreted that term in Section 3 to mean “voluntary assistance to the insurrection, by personal service or by contributions … of something useful or necessary.” Even before more facts are developed in the case — including a possible impeachment of Mr Cawthorn — the tweet urging protesters to fight because the future of the Republic depends on it seems clearly intended to to assist.
The January 6 indictment of Stewart Rhodes, the leader of the far-right Oath Keepers, and 10 other participants on seditious conspiracy charges reinforces the idea that the January 6 crimes were not just property crimes or disorder, but attacks on the government itself, the same core thinking. as in the uprising.
If the North Carolina courts contradict him, expect Mr. Cawthorn to quickly turn to the U.S. Supreme Court, arguing that it has final jurisdiction to interpret the federal constitutional term “insurgency.” At the time, a conservative majority, including three judges selected by Donald Trump, could very well sympathize with Mr Cawthorn.
But while rare, the North Carolina voter challenge is no joke. The challengers have a strong case and Mr. Cawthorn would be foolish to take the light.
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, Los Angeles, School of Law and the University of California, San Diego, Department of Political Science. He also hosts the ‘Talking Feds’ podcast.