Who Decides if January 6 Was an Insurrection Prohibiting the Election Of Participants?

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The Fourteenth Amendment prohibits anyone who has engaged in insurrection or rebellion against the United States after swearing an oath to support the Constitution from ever holding public office again. In light of this Disqualification Clause, some have called for participants in the riot that occurred on January 6, 2021 to be barred from future elections.

Who has the authority to enforce this provision, the states or Congress? Normally states cannot add requirements for holding public office, but is this different, or is enforcement left to Congress itself through its ability to expel members?

These questions took on new relevance on September 6, 2022, when New Mexico Judge Francis Mathew ordered that Otero County Commissioner Couy Griffin be removed from office effective immediately for his participation in the January 6 riot under the Disqualification Clause. While this decision is likely to be appealed, it could have serious implications for members of Congress and/or former President Donald J. Trump.

Watch a discussion on these important issues between James Bopp, Jr., who represented Congressman Madison Cawthorn against challenges to his office under the Disqualification Clause, and Pressly Millen, who represented the challengers to Congressman Cawthorn. That challenge was mooted after Congressman Cawthorn failed to win his primary, leaving the underlying questions unanswered. Joining Mr. Bopp and Mr. Millen will be Kory Langhofer, who successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge, and moderator Devin Watkins, an Attorney at the Competitive Enterprise Institute.


  • James Bopp, Jr., General Counsel, James Madison Center for Free Speech
  • Kory Langhofer, Managing Partner, Statecraft
  • Pressly M. Millen, Partner, Womble Bond Dickinson
  • Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I'm Associate Director of Practice Groups here at The Federalist Society.


Today, we're excited to host a panel discussion titled, "Who Decides if January 6 Was an Insurrection Prohibiting the Election of Participants?" Joining us today is a great panel of legal experts who bring a range of views to the topic. In the interest of time, we'll keep intros brief at the outset here. You can view our speakers' full bios at fedsoc.org. Our moderator today, Devin Watkins, is an attorney at the Competitive Enterprise Institute. Devin previously worked at the Cato Institute as a legal associate and his op-eds have appeared in National Review online, The Hill, Time and The Federalist, among other outlets.


After discussion between our panelists, we'll go to audience Q&A as time allows. So please enter any questions you'd like to ask our speakers in the Q&A function at the bottom right of your Zoom window. Finally, I'll note that, as always, all expressions of opinion are those of the speakers joining us today. With that, Devin, the virtual floor is yours.


Devin Watkins:  Thank you. We have three very experienced attorneys with us today to help discuss the Disqualification Clause or also called the Insurrection Clause that generally prohibits someone from holding federal or state office if they have sworn an oath to defend the Constitution and then commit insurrection, rebellion, or give aid and comfort to the enemies of the United States. We're going to discuss a variety of aspects of this clause, what it means to be in an insurrection, who gets to decide, who has done this, and all kinds of different aspects to this. Our panelists have a long history, each and every one of them. So I'm not going to go through all of that. I'm just going to be focusing on what their current position is and their experience with the Disqualification Clause that shows that they're on this specific clause because it is very rarely litigated.


      We have first with us James Bopp, Jr. He is the founder of Bopp Law Firm. He represented Congressman Cawthorn and Marjorie Taylor Greene against a disqualification challenge to their office. Second, we have Press Millen. He is a partner at Womble, Bond, and Dickinson and an experienced trial attorney who represented the challengers to Cawthorn on -- Congressman Cawthorn -- on the Disqualification Clause. Last, we have Kory who is managing partner at Statecraft. He successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge. So with that, I'm going to start with James Bopp, Jr. to lead us off and help give us a little bit more detail about this clause and what is going on.


James Bopp, Jr.:  Thank you, and thank you very much for letting me participate in this event. Of course, I represented two different congressmen, Cawthorn and Greene, in their separate challenges to their candidacy for reelection. Congressman Cawthorn was, of course, subject to a voter challenge through a state procedure, and this is available in every state. However, we brought a federal lawsuit that enjoined the state from participating -- from pursuing the disqualification challenge because of the Amnesty Act of 1872 had removed the political disabilities associated with that as it applied to him. He then lost the primary, but we kept that challenge off his back. And then, the Fourth Circuit, in a moot case, decided it anyway and disagreed with the district court on the Amnesty Act.


      Regarding Marjorie Taylor Greene, it was kind of the flip side. Same state challenge to her candidacy being disqualified. We brought a federal case, which our preliminary injunction was denied. As a result, we went through the state procedure, had a hearing, the voters tried to put on a case. The administrative law judge found no evidence -- zero, zero, zero evidence -- that she engaged in an insurrection. So we won the case in state -- in the hearing and then, the subsequent appeal in state court, and we are now awaiting Eleventh Circuit decision on our constitutional challenges to this whole process including applying Section 3.


      This is a national effort that has been brought by a group called Free Speech for People. They have brought this against dozens of US senators, congressmen, state reps, local public officials, the vast majority of which had absolutely nothing to do with the attack upon the capitol but seem to be particular targets of liberal distaste. And they have already filed letters with every secretary of state claiming that Trump is an insurrectionist as a result of January 6th and should be denied candidacy in every state. So this is something that will need several wooden stakes in the heart probably in order to stop this misguided effort and probably several years of litigation and chaos.


This is a classic example of liberal exaggeration where they weaponize an issue to attack their opponents and democracy. They take something which, in my opinion, was bad enough which was a despicable attack on the US capitol, and they turn it into a lie and the lie is that there was an insurrection on that day. They deploy this lie then to undermine democracy by trying to remove people from office, preventing them from being candidates for office. Thereby stripping the voters of their right to elect their representative people and empowering bureaucrats, lawyers, and judges with the power to select who's going to be in public office.


Now, the problem that Congress and the American people dealt with with Section 3 of the Fourteenth Amendment was that, after the Civil War, the southerners were still electing confederate leaders to public office including Congress. And the republicans in the Congress objected to this and ultimately it led to Section 3 of the Fourteenth Amendment. It provides in relevant part that no person shall be a senator or representative and then etc. hold any office, civil, military, etc. under the United States or under any state who, having previously taken an oath as a member of Congress or officer or etc. to support the Constitution of the United States, shall have engaged in insurrection or a rebellion against the same. In other words, they cannot take office. If you've sworn an oath, you engage in insurrection or rebellion, you cannot take a subsequent oath in order to take office. The last sentence importantly is that Congress may, by a vote of two-thirds of each house, remove such disability.


Now, this has several key aspects to it. One of the most important, of course, is that it has both retroactive and prospective affect. So the way it is wording, it would affect both what happened in the Civil War, the people who prior to the Civil War had taken an oath then engaged in insurrection could not then become -- could not take a subsequent oath and it had a prospective effect. If this occurred in the future, then it would be applicable. Of course, the most important words are "engage," and the word "insurrection," both of which were very narrow. There is an attorney general opinion in 1867 of those exact words where "engage" is an overt direct act not -- mere disloyal sentiments or expressions are not sufficient. And secondly, "insurrection" is a domestic war as the attorney general in 1867 described it.


Now, there are several problems with private parties trying to enforce Section 3. First, the disqualification to take office cannot be determined until the actual date when the person on January 3rd presents themselves to take the oath of office. And that is, while someone may have met the conditions for disqualification before, you never know when Congress, exercising its power to remove such disability, whether or not the Congress will remove that disability until the person presents themselves. So you cannot use Article 3 to say, "Well, you can't run for office," which is what the voters are doing here because when you show up to be sworn in, you cannot take the oath because you don't know in the meantime whether or not Congress will remove that disability. So it cannot be used as a weapon against somebody being a candidate for office.


Second, there's no private cause of action. I mean, this was decided from the get-go in In Re Griffin in 1869. Then Chief Justice Chase operating as a circuit justice held that there was no private cause of action for a claim under Section 3 of the Fourteenth Amendment because only Congress can provide for such private cause of action. This of course continues to be true as we know in the Armstrong case recently decided by the Supreme Court. They said that look, just because somethings in the US constitution doesn't mean you have a private cause of action. Private cause of action has to be specifically provided for. If you as a private party is going to use a provision of Congress against another private party. And then in a footnote they said, "Well, but of course, if the state uses or the government uses -- is pursuing you and you have a defense under the Constitution, then you can of course always assert that." Which is what we are doing on behalf of Greene and Cawthorn.


And then finally, third, the Amnesty Act of 1872 removed this disability when the Congress said that they were removing from a large category of people all the political disabilities imposed by the third section of the Fourteenth Amendment are hereby removed from all persons whatsoever. Well, Cawthorn, Greene, or all persons whatsoever and their disability has been removed. Finally, employing Section 3 to prevent a person from being a candidate for office, abrogates that Congress's sole authority under Article 1 Section 3 to judge the qualifications of its own members because if you remove Greene, she can't run in the general election, she's not elected, Congress is deprived of the opportunity to judge for themselves whether or not Section 3 disqualifies her and that is contrary to the Constitution.


There's lots of other problems. Some of which Kory will talk about. But this is really a terrible misbegotten effort that could create the most enormous chaos in the history of the United States elections. If we have a candidate for President of the United States that are challenged in every state on whether or not he or she can be on the ballot, this is the most direct attack on our democracy, on the right to vote, on the ability of the American people to have a representative democracy short of the Civil War and it's despicable. And while the attack on the capitol was despicable, this is a despicable response.


Devin Watkins:  Okay. So our next presenter is going to be Press Millen.


Pressly M. Millen:  Thanks. And thanks for having me. This is not my normal venue, but I'm here and happy to reengage with my friend, Mr. Bopp and learn about these things. I think what you heard from Jim was sort of a wholesale condemnation of what's going on here, but I think the problem is this is something that is not a creation of some liberal cabal. This is something that was put into the United States constitution in 1868, and a determination was made at that time as to who would be appropriate to serve in these various positions. And that determination essentially said that, if you fit into this narrow category of persons who had sworn an oath to the United States then engaged in insurrection or rebellion against the United States, you couldn't come back and hold office. And that was a determination made in the Fourteenth Amendment and is not dissimilar from other determinations that are made in the Constitution regarding the qualifications of candidates such as that they should be citizens, such as that they should be -- if they're going to be members of the house -- 25 years and older with other age restrictions applying to the senators and presidents.


So these are not things that arise from a liberal cabal. These are things that arise from the United States constitution, like it or not. And if people want to argue that there is bad public policy embodied in Section 3 that in fact people who do engage in insurrection and rebellion, having previously sworn an oath not to do that, ought to be allowed to continue to serve in office, then that's something that's going to require an amendment to the Constitution. I can promise you, despite the gloom and doom that was painted -- and I'm really just a lawyer in North Carolina. This is not my job. Some people came to us who really were not fans of their congressman, Madison Cawthorn. And they were not all liberal democrats. In fact, when it all was said and done, Madison Cawthorn had very few friends among republicans, democrats, or unaffiliated voters because of the way that he conducted himself as a member of Congress. But I can absolutely promise you that no letter has been filed with the secretary of state of North Carolina stating that Mr. Trump is not eligible to run for office.


So looking a little bit more at the historical basis here, and I think this -- give a broader and I think really more accurate historical picture, and again my experience is limited to North Carolina with what we did here with respect to Cawthorn. But North Carolina would not be a state in the union today had it not explicitly agreed to enforce Section 3 of the Fourteenth Amendment. And the fact is, the 40th Congress on June 25, 1868, by a two-thirds majority in each house and over the objection of then President Andrew Johnson, passed a law -- it's 15 Stat. 73 -- that was entitled An Act to Admit the States of North Carolina -- and there were six others -- to Representation in Congress. And that act stated that it would take effect upon each of those states' ratification of the proposed Fourteenth Amendment. And it contained the following explicit provision and condition for North Carolina. "No person prohibited from holding office under the United States or under any state by Section 3 of the proposed amendment to constitution of the United States known as Article Fourteen shall be deemed eligible to any office in either of said states unless relieved from the disability as provided in said amendment." Two weeks later, two weeks after North Carolina was readmitted on that condition, on July 9, 1868, the Fourteenth Amendment was fully ratified.


So the argument that the operation of the terms of Section 3 through state processes, in particular the North Carolina process, somehow thwarts the will of the voters by permitting bureaucrats to strike disqualified candidates from the ballot -- that's an ahistorical argument. That is precisely what Section 3 was intended to do. Voters in the former confederacy -- and Jim mentioned this -- they wanted to continue to be represented by insurrectionists. North Carolina even tried to send its confederate governor, Zebulon Vance, to Congress. And he was not allowed to take his seat. And our nation, not our congressional district, not our state, but our nation adopted an amendment that mandates that this very small slice of humanity, insurrectionists who had previously taken the oath, are disqualified from serving no matter how much the voters of their state or district prefer them. The constitution doesn't allow the voters to send teenagers or Chileans to Congress and they can't send insurrectionists who have taken the vote either.


And so we've had this process in North Carolina through a challenge process with respect to Cawthorn and the case was -- Mr. Bopp can tell you -- was mooted. It actually wasn't mooted in the sense -- the legal sense of the world. The determination was made that the Amnesty Act did not apply to Mr. Cawthorn. In the other case where the Court ruled against Marjorie Taylor Greene's claim under the Amnesty Act and other provisions, Mr. Bopp went to court and as he stated the ALJ as you would expect a procedure to work made the determination that she did not fit the category of insurrectionist. And now, as a result of the good work done by Jim, we will now be treated probably for at least the next two years to the public policy discussion that Marjorie Taylor Greene brings to Congress, and we won't be deprived of that as a result.


So I will say North Carolina in addition to that readmission condition -- very shortly after being readmitted, North Carolina through its Supreme Court determined in a case called Worthy that an individual who had held office -- in fact, he was just a sheriff of a particular county in North Carolina -- but under a confederate government, was not entitled to continue to hold office by virtue of Section 3. So again, private parties, that's the way North Carolina set up its challenge procedure.


If someone wants to run for Congress or frankly any office in North Carolina, it's utterly amazing. I encourage you to check out the form that you have to fill out in order to run for Congress in North Carolina. You basically have to put your name and address and sign it. You don't have to aver that you are a citizen, which is obviously a requirement under the Constitution. You do not have to aver that you are a citizen of the state, which is a requirement under the Constitution. And North Carolina has chosen, as one of the 50 states, that the way that it will police this is by allowing the candidates to submit a very sparse form that doesn't require them to say very much or do very much and then there is a procedure for challenging it. And it is a procedure that involves voters from the particular district, or it could be voters from anywhere in the state for a statewide office to essentially lodge a challenge on a verified complaint. And then, the candidate needs to come forward and say, "I'm 25 years old. I am in fact a citizen of North Carolina." Or in the case of the particular thing we're talking about with respect to Section 3, "No. I didn't engage in insurrection." And the fact of the matter is there are 13 congressmen in North Carolina -- seven republicans, six democrats. And only one of them would have any difficulty in making the minimal amount of proof that I assume none of us on this call would have any difficulty making -- that we have not engaged in insurrection.


Now, on the Amnesty Act, the issue was that Mr. Cawthorn asserted that in 1872, that Congress passed a fairly broad amnesty as is permitted under Section 3 that took, again, a very large swath of confederates and said you are no longer covered by this. And in that circumstance, that was something that covered those particular persons. Didn't cover other higher-ranking confederates but certainly, we argued, did not cover future insurrectionists -- the unborn insurrectionist. Go ahead.


Devin Watkins:  Well, we'll be coming back to you again. I just wanted to give Kory a chance to say his thoughts, and then we'll return to you afterwards to get a reply to what Kory thinks as well. So with that, Kory, if you can please explain your thoughts on the Insurrection Clause.


Kory Langhofer:  Sure. Thanks for having me, Devin and Jack. I've been asked to address two issues and the first is, how we should think about the phrase "engage in insurrection" and this ends up [indiscernible 25:43] The phrase is not defined in the Constitution. I guess the meaning of the words are just kind of assumed. And so the courts are struggling right now to define that. [indiscernible 26:01] careful definition that we've got from the courts through this series of cases is from a New Mexico court which actually is one of the more interesting cases [indiscernible 26:12] and --


Devin Watkins:  We're having a little bit of audio problems on my end. Can you make sure your mic is plugged in fully or something like that?


Kory Langhofer:  Yeah. Is this any better?


Devin Watkins:  Yeah. It was going in and out. Hopefully that fixes it.


Kory Langhofer:  All right. Great. So the -- as I was saying, there's no constitutional definition of "engaged in insurrection." And so the courts have struggled to define this. One of the more interesting definitions we've got so far is from the New Mexico case which is still pending. New Mexico has banned from office a county office holder there and that case is still on appeal, but it's been appealed as I understand it to the New Mexico Supreme Court.


      Let's start -- before we get to how the New Mexico defined "engaged in insurrection," let's start with what almost certainly is not insurrection. And I think that's actions by members of Congress on the floor of Congress or in preparation or furtherance of actions on the floor. So a number of the lawsuits -- I think six of them -- that have been brought were against congressional candidates -- either house or senate -- and all of those relied to some degree on arguments that the defendants, the congressional candidates, had made on the floor of the house and in one case the senate. And because of the Speech and Debate Immunity Clause, I think that the -- it's very difficult, probably impossible, to say that what you do on the floor of the house -- basically your official duties as a congressperson -- can be used to eventually disqualify you from office. So I think when I'm thinking about what it means to engage in insurrection, I think we can just rule out official actions of a congress person. But what's left after that is more difficult.


      So if we're looking at statutory law, there is 10 USC 253 which is in a section defined -- just called "Insurrection" but again, there's no definition of insurrection in that statute. The meaning is just kind of assumed for the readers to understand. So the definitions then really are drawn from historical practice or just case law. And the problem is that there's a spectrum there. So what Jim Bopp was saying at the beginning is, the attorney general defined insurrection as something approximating war. That's a very narrow definition. There's not many things we can point to historically as being insurrectionary with that definition. But the New Mexico court defined it much more broadly. What they said, based on historical sources -- I encourage you to read it -- it's a thoughtful opinion. He says, an insurrection is "One, an assemblage of persons" so you can't do it alone, "Two, acting to prevent the execution of one or more federal laws. Three, for public purpose. And four, through the use of violence, force, or intimidation by numbers."


      Now, that's good insofar as it goes, but once you start thinking about it, it includes a lot of things. So the occupation of downtown Seattle may well count. The burning of post offices in protest of police violence may well count. And so where is it? Is this the correct definition from the New Mexico court? Or is it something that's equivalent to war like Jim Bopp was saying. I'm not sure, and I think that's an issue that's still open to argument. Now, the further point though is that it's not enough to have been proximate to insurrection. You have to have engaged in insurrection in order to be disqualified. And so let's assume for purposes of this conversation that January 6th was an insurrection. That whatever the definition, January 6th was that. You can imagine someone who thought they were going to attend a speech there on Capitol Hill on January 6th but blindly walked around unaware that people were transgressing laws. Maybe that would be difficult. It sort of depends very much on the person's perspective. But it's not enough to be present. You have to engage. Says the Constitution.


      So as Jim Bopp said, the attorney generals previously said it has to -- it can't be words or sentiments. It has to be acts. But I'm not sure that, if pressed, the Court would agree with that. What if the words you use are urging action by others? Well, that might be sort of aiding and abetting or conspiracy liability in a criminal sense. And so perhaps words are enough if it's inciting an insurrection. That's not been decided yet, and I think of all the cases that have been brought so far, the only one who has lost -- this guy in New Mexico still on appeal -- had the most direct connection to violence of anyone. So the congresspersons were -- the allegation of insurrection arose from them acting on the floor of the Congress. That apparently wasn't enough, but the person in New Mexico apparently was urging others to act. He was proximate to people who were calling for violence it seems. He was transgressing the boundaries that had been set up, apparently disregarding some sort of notifications that the assembly was unlawful. So that's much closer to what you can say is engaging in insurrection than all the other defendants in these series of cases. All right. So hopefully, that teases out a little bit more what it means to engage in insurrection. I think there's still room for argument on that in the cases that remain.


The second issue I've been asked to speak to is who decides -- where is the proper forum to proving a violation of the Insurrection Clause? For congressional candidates, I think the answer is pretty clear. The exclusive authority to decide the qualifications of members of Congress is vested in the Congress. And so for the six congressional cases that have been brought, it seems like those people should have been able to proceed to the ballot and if they win, have the issue raised and litigated before Congress actually seats them. For the others though, for all the others, as Pres points out, for example, the North Carolina state candidates, the argument is this from the defendants of these cases, they say, "This is a federal law. If you're going to have private enforcement of it, Congress must create a private right of action to enforce the federal law. You can't have a state statute creating a private right of action to enforce federal law."


And then, on the other hand, you have Pres and his peers arguing that, surely if there is someone who engages in insurrection against the United States, an enforcement of that provision has been a condition of admitting states to the union. There has to be some way of enforcing it. And so in New Mexico for example, where they disqualified the candidate, the court there did that under their quo warranto statute. Every state has one of these. And it basically says you can sue to throw out of office -- eject from office someone who lacks the necessary qualifications. And so there is no federal statute creating a private right of action under the Insurrection Clause, but at least in one case they have found the state quo warranto statute is enough to create a private right of action. And that's kind of like the fault line of how that argument breaks down.


I will point out though, on the defendant's side of this, the idea that there must be a federal private right of action created, there is the Griffin case from 1869, which as Jim points out was decided by then Chief Justice writing circuit -- so it's a very unusual lower court case written by the chief justice. And he found, for what it was worth, that the -- you must have a federal private right of action created in order for there to be private enforcement of this. There is a criminal statute. The government can enforce insurrection cases. You can't disqualify people from office based on a criminal prosecution, but so far, no federal right of action created by Congress. Well, Devin, I think I've talked too long, and so I'll yield the floor back to you. Thank you.


Devin Watkins:  Okay. So with that, I'm going to return to Pres Millen to respond to Kory on the Insurrection Clause or the Disqualification Clause.


Pressly M. Millen:  Yeah. I think Kory makes some very good points, and I do think that this law is going to need to be litigated and determined in these various forums. I'll tell you, from my perspective, what happened on January 6th, and from the perspective of my clients who swore out challenges against Cawthorn, it was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election from one administration to the next. And those are not my words. Those are the words of Senate Majority Leader Mitch McConnell from February 8, 2022. I would also say that on August 5, 2021, Congress passed public law 117-32 which was a law to award the congressional gold medals to the United States -- four members of the United States capitol police. And in that public law, Congress made the following finding in Section 1, "On January 6, 2021, a mob of insurrectionists forced its way into the US capitol building and congressional office building and engaged in acts of vandalism, looting, and violently attacked capitol police officers."


      So again, these are -- and by the way, Madison Cawthorn voted for that law. To Mr. Bopp and Kory's benefit, I think their clients did not -- their other clients did not. Miss Taylor Greene did not. The Arizona congress people voted against that law. There was a question in the chat box -- and by the way, I think Kory's observation about the Speech and Debate Clause is a very pertinent one and one that goes back to Parliament in England where they were jailing people for what they said on the floor of the Parliament certainly through the time of Queen Elizabeth I but then that was considered to be very bad practice.


      What I can tell you about Cawthorn, and this was a question in the chat, is that Cawthorn was sworn into Congress on January 4, 2021. The youngest member of Congress. Probably the most immature member of Congress. Two days later and having previously urged in December that his followers lightly threaten their members of Congress, and according to the organizers, helping plan some of the day's events, he was one of just a small group -- two or three -- congressmen who spoke that day at the so called "March to Save America" rally. And he encouraged the crowd to "Go and fight in Washington D.C. rather than just sit idly by on our hands." He pointed out to the crowd the distance and direction to the capitol. And within a couple of hours, as we all saw, a massive crowd breached the capitol in a violent insurrectionary effort to impede Congress from certifying the election in favor of President Biden. And what we saw that day was horrific and, at least from my perspective, everything we've learned since that day is even more horrific. And when the time came to decide in a congressional law what that was, Cawthorn said, "Yeah. That's an insurrection." So that's I think that point.


      On the "Who decides" issue, I would just say with respect to Griffin, if anybody is suffering from insomnia, please go read the Griffin case. The circuit decision of then Chief Justice Chase. I think that the Griffin case can very naturally be cabin to the very peculiar circumstances that were present in Virginia at that time. It really doesn't talk about a private right of action. The issue is really whether Section 3 is self-executing. And what Chase said there was Section 3 can only be -- is not self-executing. It can only be executed by an act of Congress. But this was at a time when Virginia did not have a state government. It was under military control and so from that perspective was much like Washington D.C. is today and only something enacted by Congress could ever do that. I think when you look at what North Carolina was conditioned to do, what North Carolina did, what Kory mentioned which was President Grant, upon taking office, had the US attorneys throughout the confederacy prosecute dozens of quo warranto writs against persons who were disabled from doing this. I think that really tells the tale.


      So North Carolina chooses to vest with voters in a given district. The question of making a challenge as to qualifications -- this is a qualification. And the North Carolina state board of elections found that it was so and that's the procedure. That is a procedure that can proceed from the North Carolina board of elections through the courts on an expedited basis under the North Carolina statutes.


Devin Watkins:  Okay. Now, we're going to be going on to questions. If anyone has any questions, please use the Q&A feature. I'm going to ask a question, and then we will see if we can get to some of the audience questions. So my question is to James and Kory. In the case of Davis, Chief Justice Chase said that the Fourteenth Amendment Section 3, it needs no litigation -- legislation on the part of Congress to give it effect. From the very date of its ratification by a sufficient number of states, it began to have all the effects that its tenor gives it. If it's provisions -- punishment, the punishment begins at once. So why is that not the case for the Fourteenth Amendment? Why does it need some type of enacting legislation to come into effect by Congress?


James Bopp, Jr.:  I'll be happy to address that. Of course, it had effect because the states are empowered and required to enforce Section 3, and that's perfectly consistent with the Constitution. States are obligated to follow the Constitution. That's a provision of the Constitution. So they're empowered to enforce it. That's not the issue that I was addressing or that Griffin addressed. Griffin addressed and I was addressing whether or not a private litigant, i.e. voters, could enforce Section 3 against another private party using the state procedures. And of course, they've sued in Wisconsin. They sued in court to take out Senator Johnson and other public officials there. So they think that they can enforce it. No. They can't enforce it unless -- under Griffin or any reasonable reading of the Fourteenth Amendment -- unless Congress authorizes it pursuant to Section 3. And of course, Congress has never authorized private enforcement of the provision.


Kory Langhofer:  I'll add a thought to that. If there is private enforcement, whether it's through state quo warranto statutes or if Congress were to create a private right of action or if it's implicit, let's say, we've got to confront some difficult questions. So you basically have private enforcement at that point of a criminal statute. You have to prove a crime in order to prove the violation, and so it's I think a quasi-criminal action. It's a fair characterization. And what standard of proof would apply then? I think it should be clear and convincing evidence. I don't think you should be able to prove a quasi-criminal claim through a preponderance standard. But courts haven't really confronted that issue yet. And what restrictions would apply to plaintiffs then? Would they have Brady restrictions? If they're aware of some exonerating evidence, would they have to disclose that as a constitutional matter? Not just as a matter of state procedures. So there are a lot of problems that go along with private enforcement of quasi criminal matters which just have not been confronted yet because most of the cases haven't gotten that far.


Devin Watkins:  Okay. The next question comes from the audience. He asks, rather than case by case litigation involving dozens of individuals or perhaps dozens of different states all around the country, maybe some deciding one way or the other, how do you see this being resolved in some type of consistent forum or do you plan to see it being resolved on 50 separate actions. Well, I'll bring this to Mr. Millen. Do you think some type of multidistrict litigation that kind of consolidates all of these together would work or some other way to resolve this in a fashion that is consistent among all the different states?


Pressly M. Millen:  Yeah, that's a good question, and I really don't know the answer to it. I do know that I'm not going to be representing a class of punitive insurrectionists who want a declaratory judgment that the statute is unconstitutional in some way. I will say this, and it sort of goes -- I think it follows on from your previous question which I think is broadly addressed to the issue of "Who decides." It's very typical, and particularly with respect to presidential candidates on the ballot, for these to be considered to be state issues in the first instance. And there are any -- there are cases in the Tenth Circuit, cases in the Ninth Circuit that all deal with these issues. And I think the states should be free to enact in the first instance their own procedures about how a candidate may qualify and what a candidate must satisfy in order to do that. In North Carolina, if you're not an eligible voter, you can't run for office. If you have a pending felony conviction, you would not be an eligible voter. If somebody put their name on the ballot through what as I described to you is a very simple North Carolina procedure of filling out a form that would take all of five minutes and had been convicted of a felony, I think that's something that a state is entitled to do to keep a felon off the ballot the same way you would keep the felon from voting.


Devin Watkins:  Okay. The next question from the audience was, how close to the line would engaging in protests where some are violently attempting to interfere with United States Supreme Court decision making rather than Congress? I know we have some rowdy protests outside judge's homes right now. And at least last term the Supreme Court had to put up some very high fencing to keep out people from the Court. And we know for instance Schumer came out and said to the justices, "You will reap the whirlwind if you do that," and some interpreted that at least as rather hostile views, and perhaps at least one individual attempted to actually assassinate a Supreme Court justice. And some have already thought it was based on some of the speech that Schumer and others have done. Where does it cross the line into insurrection? I assume Schumer is not on the line of insurrectionist, but how much further does it have to go before there's protests or violent protests or pushing against Supreme Court police to have it also considered an insurrection.


James Bopp, Jr.:  There's a lot of First Amendment protections to speech including what people would call incitement speech. There's been a series of cases in the Supreme Court one the NAACP where there have been very specific threats made by in this case an NAACP official -- very specific threat that they were going to be victims of a crime, that they were going to come for them if they didn't observe the boycott or whatever the issue was in the case. And the Court said that's protected by the First Amendment. And I think -- so that cabins the use of speech -- what's protected by the First Amendment, which can be very aggressive in terms of threats that are made -- and so that's off limits. As Kory said correctly, speech and actions on the floor of Congress, that's off limits. And then now, we got to deal with the word "engage". Engage is not a word of speech as the attorney general said in 1869 but a direct overt act now. A direct overt act can be, for instance, the commander of a brigade of confederate soldiers telling them to attack the hill. I mean, that's speech, but it's a direct overt act of launching an attack in conjunction with obviously a war in that case. But that's a very narrow category because if "engage" doesn't mean conduct, what in the world would it mean?


      Now, there can be words that are so connected to conduct that they would mean "engage," and I would agree with that. But let me give you an example of Marjorie Taylor Greene. Of the hundred exhibits, the hours and hours of testimony, the videos, and everything else, it came down to one appearance on one television show before January 6th where she said, "January 6th will be our 1776 moment." Now, that was a phrase that was being used by the members of Congress who were going to object to certain electors and whether or not those votes should count in Congress. And that's what they were being prepared for. What you don't know and probably no one on this call knows is that there was this fringe group over here that created a secret 1776 project which involved a protest at the capitol at the time of the counting of the votes. So that -- and they called that -- and they're correct. That's a code word. In other words, a word that everyone of us would associate with the most important year in the history of our country, our independence, with a fringe group's project regarding January 6th and the capitol. That was the only fact.


Now, insurrectionists need to be charged with a crime. By the way, no one who was involved in the attack on January 6th, as despicable as it was and as violent as it was, not a single one was charged with engaging in an insurrection. The closest you get to that is sedition. Sedition is a much broader term, and it is not engaging in an insurrection. So not even the FBI and the Justice Department that have people who are actually doing things that are unlawful have ever had the gall, the audacity, or to take political hyperbole to that extent of actually charging one with a crime. Marjorie Taylor Greene, on the day of January 6th, was on the floor of the United States Congress doing her constitutional duties when the attack occurred to her great surprise and terror. They thought, "Who's attacking the capitol? Is my life in danger?" She's texting her family about her life being in danger because people are attacking the capitol. So she is charged with engaging in an insurrection.


It's not that insurrectionists shouldn't be punished. It is weaponizing a term and a process like this to go after your political enemies and if it would be Trump -- and Pressly, the Free Speech for People website says they sent letters to every secretary of state in the United States saying Trump is not qualified. So I'm just going from that. Can you imagine repeating Cawthorn and Greene and the Arizona case throughout 2024 and trying to figure out how we can elect a president if Trump --


Devin Watkins:  Okay. Let's let Mr. Millen respond to that if he wishes.


Pressly M. Millen:  Yeah. I mean, I think again, people have been charged with sedition. I don't know the details of the New Mexico case that Kory was talking about, but what I understood is that this fellow who is a county commissioner in New Mexico, who had sworn an oath to defend the Constitution, is essentially standing on the steps of the Capitol and urging them to "Go on boys. Beat the crap out of the capitol police." The fact of the matter is, it's all well and good to talk about Antifa and I doubt many of them took oaths to the United States. It's all well and good to talk about pro-abortion -- pro-life or pro-abortion demonstrators that you all do, but the fact of the matter is, what happened on January 6th, there are consequences from that.


      And in Jim's case, with respect to Marjorie Taylor Greene, it sounds like the system worked and she was found not to have engaged in insurrection and good for her. But to the extent that there were others who were in there bashing in policemen's heads, looking to hang Mike Pence, looking to impede the government, engaging in sedition, which apparently Jim thinks is some sort of low-level crime with respect to the United States, there are consequences. And it wasn't liberal operatives who were doing that unless as some of these congress people have said, "Oh, that was really just Antifa demonstrators on January 6th," but I know none of y'all believe that.


Devin Watkins:  Kory, did you want to respond at all?


Kory Langhofer:  Yeah. I think the original question was whether Supreme Court protestors maybe crossing a line. And let's just think about the elements of this at least as the New Mexico court defined it. It's probably the clearest definition we have so far. I'm not sure it's correct but it's reasonably clear. And one of the elements there is numerosity. You can't have an insurrection alone. You've got to be part of a group. And so I don't think the guy who wanted to assassinate Justice Kavanaugh committed insurrection. He was alone. If it's correct that giving orders could constitute insurrection, then I guess you'd have some argument for Senator Schumer although I don't think any court would find that would constitute insurrection. You also have to be, not just disruptive, but trying to impede a governmental function. And so showing up outside the Supreme Court and being very loud and expressing disapproval isn't enough. You have to stop them from functioning in some way. And so I don't think that those examples are likely to be found by a court to constitute insurrection. So much of us doing the work here just an intuitive sense of what does an insurrection look like. And that's about the best authority we have at this point because the legal decisions are sparse.


Devin Watkins:  Okay. One of the questions was, can you review the Fourth Circuit ruling? Was it procedural or did they find that Cawthorn was an insurrectionist? My understanding was that the Fourth Circuit ruled that the Amnesty Act did not apply prospectively. It applied retroactively but not prospectively. Fourth Circuit may have been right or wrong on that but then they remanded back without actually deciding if Cawthorn was an insurrectionist. Now, Cawthorn lost his primary, so it effectively ended that process because it didn't matter anymore. But that's what the Fourth Circuit ruled. Is there anyone else that wants to discuss the Fourth Circuit ruling? No? Okay. Let's see. The last question currently on the list from anyone in the audience is, why has no one been charged with the insurrection? Have they been charged and if so, with what? So Mr. Millen, why has no one been charged with insurrection?


Pressly M. Millen:  I mean, obviously, that's an issue well beyond anything that I would have anything to do with. I represented a bunch of rank-and-file voters in North Carolina. I mean, a lot of things have been charged with respect to what happened on January 6th. Some of those include seditious conspiracy. Some of those are obviously continuing to be investigated, and I don't think the charging is necessarily all done and there are a host of things that have been done. And one of the things that's interesting to me is I don't know how many of those people who were doing what they did on that day, things that I think all three of us would agree were acts unquestionably acts, I don't know how many of them would fit the category of persons who would have sworn an oath. Very few young people, for example, would have sworn an oath. Very few high school graduates without proceeding onto college or law school will have sworn an oath. So I think it's an astonishingly small number of people. I don't think this is going to be some kind of brush fire. I would be very surprised if that's the case, but I do think that the nation decided in 1868 that these people were not fit to serve in the federal and state office, and I think that that decision continues to today.


Devin Watkins:  Okay. Well, with that, we're at 2:00 and we're going to have to end. So I want to thank everyone for coming out today and having an interesting discussion.


Jack Derwin:  Thanks so much, Devin. And I'll echo your thanks for the rest of the panelists as well. And thank you for our audience for tuning into today's event. You can check out our website fedsoc.org or follow us on all the major social media platforms @fedsoc to stay up to date. With that, we are adjourned.