In just his first term as a congressman representing western North Carolina, Madison Cawthorn has garnered a lot of attention for himself.
As an acolyte of ex-President Donald Trump, that strategy has seemed to serve Cawthorn well in terms of building widespread name recognition and a solid donor base.
But Cawthorn's penchant for speaking in belligerent terms about Democrats and his role in perpetrating the lie that the 2020 presidential election was stolen for Trump may be catching up with him. He has dodged a voter challenge filed with the North Carolina Board of Elections — thanks to a Trump-appointed federal judge — but Cawthorn's recent charge for driving with a revoked license and his denigration of Ukrainian President Volodymyr Zelensky could dog him as he slogs through a crowded GOP primary in North Carolina's 11th Congressional District.
"Cawthorn, in varying ways and forms through statements and actions, supported and engaged in that attempt to stop the certification of the votes," said former North Carolina Supreme Court Justice Robert Orr, who left the Republican Party over its embrace of Donald Trump and is now registered as an unaffiliated voter. Orr also is one of the attorneys who helped file the now blocked candidate challenge against Cawthorn on behalf of a group of 11th District voters.
They claimed Cawthorn violated Article XIV, Section 3, of the U.S. Constitution when he engaged in an insurrection on Jan. 6, 2021, disqualifying himself from serving in Congress.
"I mean you had everybody from [Sen.] Mitch McConnell to Gen. Mark Milley, Chairman of the Joint Chiefs of Staff, originally appointed by Trump, calling this an insurrection," Orr added.
Cawthorn attended the rally that day that preceded the violent — and ultimately deadly — storming of the Capitol at which he and Trump along with others urged the crowd to oppose certification of President Biden's electoral victory.
"But my friends, the Democrats will have — all the fraud they have done in this election, the Republicans hiding and not fighting — they are trying to silence your voice," Cawthorn warned the crowd.
"They do not want you to be heard," Cawthorn declared. "But my friends, when I look out at this crowd, I can confidently say this crowd has the voice of lions. There is a new Republican party on the rise that will represent this country, that will go and fight in Washington, D.C. I'll tell you, I see so many of my friends who are up in Congress with me who are about to go back to that Capitol Hill and at 12 o'clock today we will be contesting the election."
After the mob that broke into the Capitol was subdued, order was restored, and Congress reconvened for certification of the 2020 presidential election, Cawthorn followed through on his pledge to contest those legitimate results.
Free Speech Or Constitutional Violation?
Were the statements he made on that day — and speeches he gave prior to Jan. 6, 2021, simply free speech? Or did Cawthorn, in fact, violate Section 3 of the 14th Amendment, written and adopted after the Civil War, that states by participating in an insurrection or rebellion, he disqualified himself from holding office?
Even though a federal judge in North Carolina's Eastern District, Richard Myers, has halted that voter challenge to Cawthorn's candidacy, saying an 1872 law granting amnesty to former Confederates shielded the freshman congressman too, the central questions remain and may get answered by members of Congress or voters in Cawthorn's district.
Prof. Greg Wallace, who teaches constitutional law at Campbell University's School of Law and specializes in the First and Second Amendments, said this on the subject: "Unless that political speech is very clearly an incitement to riot, an incitement to imminent lawless violence, under the Supreme Court's precedents, under the Supreme Court's tests for that and you have to look at the kind of speech the Supreme Court has said in the past 'No, that doesn't rise to the level of this,' I just don't think it does."
Nor does Wallace think Cawthorn crossed any lines, in terms of his free speech rights, when he told a crowd of young conservatives at a Turning Point USA rally on Dec. 21, 2020, they were free to "lightly threaten" members of Congress deemed not to be doing enough to protect "election integrity."
Despite the mayhem of that day, with the mob's chants of "Stop the Steal" and some calling for hanging Vice President Mike Pence, Wallace said he sees the Capitol riot as a largely disorganized protest that got out of hand, not an insurrection. Wallace also said he harbors his own doubts about the legitimacy of the outcome of the 2020 presidential election.
"But even if you assume that what happened at the Capitol was an insurrection," Wallace posited, "then was there an intent on the part of President Trump, on the other speakers of that day on people who, people like Cawthorn who tweeted out, made certain statements, was there an intent for them to incite people to commit an insurrection?"
"I mean I think that's a very difficult thing to prove and again," Wallace added, "when there is doubt here I think you have to err on the side of protecting more speech rather than less. The cure for bad speech — I tell my students — the cure for bad speech is more speech, not less. And so I think we have to be very careful when we seek to punish people, like the Democrats are doing here with Representative Cawthorn, seek to punish people for their political rhetoric. I just think that's a bad idea."
Last week, Guy Wesley Reffitt — the first Jan. 6 rioter to go on-trial — was convicted on multiple counts, including obstructing Congress's certification of the 2020 presidential election. And in seeking access to crucial records, the congressional committee investigating the insurrection made the case to a federal judge for possibly pursuing criminal charges against office holders.
Jan. 6 Was 'Not Just A Riot'
"Yes, in the politics of this time, even some scholars are going to say that what we saw on Jan. 6 was not an insurrection," said Prof. Ted Shaw, of the UNC-Chapel Hill School of Law. "But if that was not an insurrection what would be an insurrection?"
Shaw teaches constitutional law and is Director of UNC's Center for Civil Rights. He is also a past Director-Counsel of the NAACP Legal Defense Fund and served as an attorney with U.S. Justice Department's Civil Rights Division.
"Short of a formal declaration of war as happened by the southern states in the instance of the Civil War," Shaw asked, "could nothing else constitute an insurrection where individuals or a mob, you know, thousands of people stormed the Capitol building of the United States to stop Congress from carrying out its responsibilities and duty in certifying an election?"
"That's trying to stop the government from functioning or at least one branch of the government from functioning," Shaw concluded. "That's not just a riot, that's an attempt to stop the United States government from carrying out its functions as are established by the Constitution and statutes."
As clear as he is on what happened in Washington, D.C., on Jan. 6, 2021, Shaw said drawing a direct link from the insurrection to the conduct and statements of Madison Cawthorn and other politicians is not as straightforward. But, he added, that doesn't mean such a connection shouldn't be examined.
"It seems to me there are people who were elected to office on the state, local and on the federal level, including people in the highest office of the land, who fomented violence on that day and if that's what happened those people engaged in insurrection," Shaw said.
"I think they violated the oath of office that they all took. And I say that as someone who worked for the federal government, not in a high-level position but I've taken the oath of office to support and defend the Constitution of the United States as many of us have. If one has taken that oath and then engaged in violence on that day to prevent the certification of the election then that seems to me to fall directly under Section 3 of the 14th Amendment with respect to that prohibition and holding office."
Ballot Box Could Be Cawthorn's Biggest Hurdle
Madison Cawthorn will not be held accountable under the voter challenge filed against him but, should he win re-election, he could be called to answer for his past statements by the next Congress. Under Article I, Sec. 5, of the U.S. Constitution, each house of Congress has the authority to determine the qualifications of its members.
But to even get to the 2022 general election, Cawthorn must prevail in a GOP primary that features some formidable opponents, including a sitting state senator, Chuck Edwards, who, like Cawthorn, is from Henderson County. Also running in the primary is a former 11th Congressional District GOP chair, Michele Woodhouse.
What is more, according to Western Carolina University Political Science Prof. Chris Cooper, Cawthorn may have alienated some constituents when he flirted with running in another district closer to the mass media market in Charlotte.
Not too long ago, Cawthorn — not even through his first term — announced he would switch districts, running in a newly created, and extremely GOP-friendly 13th Congressional district that did not include his home county. Soon after that, political observers noticed Cawthorn contributed some money to Michele Woodhouse.
"Cawthorn never gave her a formal endorsement but obviously had given her money so everyone thought 'OK, this is Cawthorn's selected candidate,'" said Cooper.
Woodhouse, indeed, entered the 11th District race as an "America First" candidate, like Cawthorn, Cooper said. Then, last month, the state Supreme Court discarded the original congressional map as being unconstitutionally gerrymandered with extreme partisan bias by the North Carolina General Assembly's Republican majority.
The approved replacement map altered the districts and Cawthorn decided to re-file to run back in the 11th, pitting him against Woodhouse. And rather than welcome Cawthorn back, Cooper said Woodhouse has gone on the attack.
"I think she actually publicly called Madison Cawthorn 'the Instagram, failed promises candidate,'" Cooper said. "So shots are getting fired already in the 11th. What we would have called friendly fire a while ago is now looking very non-friendly."
But Cooper said he does not think Cawthorn's GOP main rivals will use his pro-Trump stances or his statements around the 2020 election against him.
"So right after Jan. 6, Republican primary voters were a lot more likely to say that it was an insurrection that people associated with it should be prosecuted than they are today," Cooper said, pointing to a shift in attitudes. "And so the very kinds of people who are going to show up and vote in this Republican primary are the kind of people who are likely to believe that January 6th was a bad day but was certainly not an insurrection."
Should Cawthorn win the Republican nomination, Cooper said he would likely face Democrat Jasmine Beach-Ferrara, a Buncombe County Commissioner, in the general election. And Cooper said she likely would draw attention to Cawthorn's role in contesting the outcome of the 2020 presidential election.
But with his assets — solid name recognition, campaign funds, a Republican-friendly district — Cawthorn easily could get re-elected, even if a legitimate argument can be made that under the U.S. Constitution he should be disqualified.
Cawthorn's spokesman has not responded to a request for comment on this story.
