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 Donald 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 also 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 selected 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, Los Angeles, School of Law and the University of California, San Diego, Department of Political Science. He is also host of the podcast “Talking Feds.”
