4th Circuit Rules Civil War Era Amnesty Rule Does Not Apply to Later Insurrectionists

RICHMOND, Va. — A federal appeals court has ruled that the protections inscribed in an amnesty law passed in the aftermath of the Civil War do not apply to other insurrectionists.

Tuesday’s ruling by the 4th U.S. Circuit Court of Appeals on the limits of the 1872 Amnesty Act is a significant victory for those who had tried to disqualify Republican lawmakers from the 2022 elections based on their role in the Jan. 6, 2021, siege on the U.S. Capitol by loyalists to former President Donald Trump.

The decision stems from an appeal by Rep. Madison Cawthorn, R-N.C., whose bid for reelection ended with his loss in the Republican primary last week.

Prior to that, a group of voters, backed by liberal constitutional scholars challenged Cawthorn’s ability to even appear on the ballot due to remarks he made before and even up to the morning of the siege when he addressed many of those who directly took part in it.

They cited the so-called “disqualification clause” of the 14th Amendment, which states that any officeholder who supports an insurrection is banned from returning to office.

The voters took their complaint to the North Carolina Board of Elections, which was asked to decide whether post-Civil War prohibitions on former Confederates holding public office applied to those who revolt against their government in the 21st century.

Cawthorn appealed to the 4th Circuit seeking an injunction to keep the board from making a determination. He also asked that the appeals court rule that the 19th century law did not apply to him because it was effectively voided by the Amnesty Act of 1872.

Signed into law by President Ulysses S. Grant on May 22, 1872, the Amnesty Act was an olive branch extended to the South during the reconstruction era. In one fell swoop it removed most of the penalties imposed on former Confederates by the 14th Amendment, which had been passed four years earlier.

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, but the congressman pushed back, arguing the Amnesty Act shielded him.

A federal judge in Wilmington, North Carolina, agreed with Cawthorn, and went on to say he had a First Amendment right to be on the ballot.

But a three-judge panel of the 4th Circuit disagreed.

“Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the 14th Amendment’s eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment,” wrote U.S. Circuit Judge Toby Heytens, who was joined by U.S. Circuit Judges James Wynn and Julius Richardson, both of whom wrote separate concurrences.

“The district court cited no evidence that Congress had such a procedure in mind when it voted for amnesty,” Heytens continued. “To the contrary, the available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness.”

The opinion notes that those who drafted the Amnesty Act specifically withheld its protections from former Confederate President Jefferson Davis.

Given that fact, “the notion that the 1872 Congress simultaneously deemed any future Davis worthy of categorical advance forgiveness seems quite a stretch,” Heytens wrote.

While the ruling will have little to no impact on Cawthorn, it could be very bad news for others accused of inciting the rioters and seeking to block certification of the 2020 presidential election, including Republican Rep. Marjorie Taylor Greene, who easily won her primary in Georgia on Tuesday night.

Like Cawthorn, Greene, who shares the same attorney, saw her eligibility to appear on the primary ballot challenged by voters in her district and activist groups. And like Cawthorn, she sought, among other things, to shield herself with the Amnesty Act.

As previously reported in The Well News, an administrative law judge concluded Greene should be allowed on the ballot, and Georgia Secretary of State Brad Raffensperger accepted that conclusion.

A federal judge later gave her blessing to Raffensperger’s decision, but nevertheless denied Greene’s request for injunctive relief to prevent future challenges to her eligibility.

“Given the preliminary stage of the proceedings, the difficulty of the legal questions posed, and plaintiff’s failure to cite persuasive legal authority or even include a developed legal argument that the State of Georgia lacks the authority to enforce an existing constitutional provision, plaintiff has not established a likelihood of success on the merits,” the judge concluded.

The 11th U.S. Circuit Court of Appeals is the next venue for the case.

Free Speech For People, the constitutional advocacy group that supported voters’ challenges to Cawthorn and Greene said in a statement that the circuit court ruling “cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of [Jan. 6], 2021 — including Trump — from the consequences of their actions.”

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.