14th Amendment Disqualification From Office Lawsuits Filed Against Arizona GQP Insurrectionists (Updated)

I have been banging this drum for weeks now. Thank you very much.

The New York Times reports, Legal Effort Expands to Disqualify Republicans as ‘Insurrectionists’ (excerpt):

A legal effort to disqualify from re-election lawmakers who participated in events surrounding the Jan. 6, 2021, attack on the Capitol expanded on Thursday, when a cluster of voters and a progressive group filed suit against three elected officials in Arizona to bar them under the 14th Amendment from running again.

In three separate candidacy challenges filed in Superior Court in Maricopa County, Ariz., voters and the progressive group, Free Speech for People, targeted Representatives Paul Gosar and Andy Biggs and State Representative Mark Finchem, who is running for Arizona secretary of state with former President Donald J. Trump’s endorsement.

[In] all three suits, the plaintiffs claim that the politicians are disqualified from seeking office because their support for rioters who attacked the Capitol made them “insurrectionists” under the Constitution and therefore barred them under the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy.

That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

[On] Friday, a federal judge in Atlanta will hear Representative Marjorie Taylor Greene’s effort to dismiss a case filed against her to strike her from the ballot in Georgia. Unless the judge, Amy Totenberg of Federal District Court for the Northern District of Georgia, issues a temporary restraining order, an administrative law judge is set to hear arguments next Wednesday on whether Ms. Greene should be removed from the ballot.

UPDATE: CNN reports, Judge appears likely to allow January 6-related candidacy challenge against Marjorie Taylor Greene:

A federal judge signaled Friday that she’ll likely allow a group of Georgia voters to move forward with their constitutional challenge against GOP Rep. Marjorie Taylor Greene, which claims she can’t run for reelection because she aided the January 6 insurrectionists.

Federal Judge Amy Totenberg of the Northern District of Georgia said during a lengthy hearing that she has “significant questions and concerns” about a recent ruling [by a Trump appointed judge] in a similar case, which blocked the same challenge against Rep. Madison Cawthorn, a North Carolina Republican.

* * *

Some of the leading experts on the Constitution’s “disqualification clause” criticized that judge’s conclusion. And on Friday, so did Totenberg, the Obama-appointed judge in Greene’s case.

“I don’t think that the Amnesty Act likely was prospective,” Totenberg said, siding with the challengers, who said the 1872 law was retrospective and didn’t protect future insurrectionists.

Bryan Sells, attorney for the challengers, who are backed by the legal advocacy group Free Speech For People, piled on, saying, “The absurdity of his argument shines through like a beacon.”

* * *

Totenberg said she will issue a ruling next week, likely on Monday. That’s two days before a state judge is scheduled to hold a hearing on the underlying question of whether Greene engaged in or aided the January 6, 2021, insurrection and whether that disqualifies her from office.

* * *

A hearing in the underlying disqualification case is scheduled for Wednesday in Atlanta, where a state administrative judge will determine if Greene is qualified to appear on the GOP primary ballot. The election is May 25, and counties will start mailing absentee ballots later this month.

Continued:

Ron Fein, the legal director of Free Speech for People, said the effort was putting pressure on the Justice Department and the House committee investigating the Jan. 6 attack to take action against individual members of Congress — and to find remedies in court.

“Our goal is to reach a ruling by a competent state tribunal, which of course can be appealed to the highest levels if need be, that these individuals are in fact disqualified under Section 3 of the 14th Amendment,” he said. “These are even stronger cases. We’re not going after people who have a tenuous connection to the insurrection.”

James Bopp Jr., a conservative election lawyer who is defending Ms. Greene and Mr. Cawthorn, said the groups ultimately could take action against as many as two dozen Republican lawmakers, hoping to establish some legal precedent for trying to bar Mr. Trump from the presidential ballot in 2024. And with enough test cases, one might succeed.

“Judges do make a difference,” he said.

[T]he lawyers bringing the new suits believe they have a stronger case to show that the elected officials in question are insurrectionists.

In the run-up to Jan. 6, Mr. Gosar and Mr. Biggs repeatedly posted the falsehood that Mr. Trump had won the election. Mr. Gosar organized some of the earliest rallies to “Stop the Steal,” the movement to keep Mr. Trump in office, coordinating with Ali Alexander, a far-right activist, and with Mr. Finchem.

See, A ‘Stop the Steal’ organizer, now banned by Twitter, said three GOP lawmakers helped plan his D.C. rally: “Alexander, who organized the “Stop the Steal” movement, said he hatched the plan — coinciding with Congress’s vote to certify the electoral college votes — alongside three GOP lawmakers: Reps. Andy Biggs (Ariz.), Mo Brooks (Ala.) and Paul A. Gosar (Ariz.), all hard-line Trump supporters.”

On Dec. 22, 2020, Mr. Gosar and Mr. Biggs met with Mr. Trump and announced they were working to prevent the “disenfranchisement” of Trump voters.

“This sedition will be stopped,” Mr. Gosar wrote on Twitter. [Said the seditionist. Project much?]

Mr. Finchem attended the rally at the Ellipse on Jan. 6 that in many ways launched the attack on the Capitol. He said he was in Washington to provide evidence to Vice President Mike Pence of what he called fraud in the Arizona election. Mr. Finchem then joined protesters who marched to the Capitol and eventually breached it, though he did not enter the building.

See, Mark Finchem was much closer to the Jan. 6 insurrection than he claimed.

And during the storming of the Capitol, Mr. Gosar used the social media site Parler, which is favored by the far right, to post an image of rioters scaling the building’s walls, writing, “Americans are upset.” As the riot raged, Mr. Gosar and Mr. Biggs led the effort to contest their state’s electors for Joseph R. Biden Jr.

Mr. Gosar would later say that Ashli Babbitt, the rioter shot by the police just outside the House chamber, had been “executed” and that investigating Jan. 6 was “harassing peaceful patriots.”

The suits say that their actions, “taken in concert with others,” establish that they “engaged in the insurrection of Jan. 6” and are “therefore constitutionally disqualified from running for congressional office, under the disqualification clause.”

The Arizona Mirror adds, Group aims to disqualify Biggs, Gosar and Finchem from ballot for Capitol insurrection:

A trio of lawsuits seek to disqualify Republican Congressmen Andy Biggs and Paul Gosarand state Rep. Mark Finchem from the ballot for their alleged roles in the January 6 attack on the Capitol.

The lawsuits are part of a growing legal effort to use the Fourteenth Amendment to disqualify candidates because of their support of the January 6 attack, claiming they are “insurrectionists” and thus unable to hold public office. The amendment was adopted during Reconstruction after the Civil War and was intended to bar Confederate leaders from being elected to positions of power. [It was a prophylactic prescription to bar all future seditious insurrectionists as well.]

Biggs and Gosar are seeking re-election, while Finchem is running for secretary of state.

Free Speech For People, the group behind the suits, has made a similar challenge in the past: It sought  to have North Carolina U.S. Rep. Madison Cawthorn barred from that state’s ballot on the grounds that he is disqualified by the Fourteenth Amendment. But the attempt failed when a federal judge appointed by former President Donald Trump ruled that the Amnesty Act of 1872 gave amnesty to all future insurrectionists. [An appeal may be filed.]

Rob Fein, legal director for Free Speech For People, told the Arizona Mirror that the same strategy is unlikely to work for Biggs, Gosar and Finchem.

“That ruling hasn’t been defended by anyone,” Fein said of the ruling in Cawthorn’s case. “The facts are very strong in these cases that Gosar, Biggs and Finchem were heavily involved in not only the effort to introduce fake slates of electors, but also involved in the violent extremist groups that gathered at the Capitol.”

The candidacy challenges will move swiftly through Arizona courts, as candidate challenges are heard on an expedited basis. If they are appealed, they advance directly to Arizona’s Supreme Court.

* * *

Biggs, Gosar and Finchem have all historically also been reluctant to speak and release information about their possible involvement and whereabouts on Jan. 6. Finchem has blocked the release of text messages related to the day and both Biggs and Gosar have been opposed to the creation of the Jan. 6 commission which has sought their phone records as well.

Finchem, who one organizer of the protests said was instrumental, has also not been entirely truthful about how close he was to the Capitol on that day.

“Now perhaps for the first time they will be forced to answer for their involvement in a court of law,” Fein said, adding that they have already requested discovery related to the suit.

Candidate challenges are an expedited proceeding which move quickly. The Maricopa County Superior Court should allow discovery and hold a hearing on the merits, so that there is a fully developed trial record on appeal.