First Genuine Test Case Of Using Section 3 Of The 14th Amendment To Disqualify Insurrectionist Office Holders From Office

Update to Use Section 3 Of The 14th Amendment To Disqualify The Seditious Insurrectionists From Political Office.

Gerard N. Magliocca reports at Balkinazation blogspot, The Second Significant Section Three Case:

[On Monday] a state lawsuit was filed in New Mexico seeking to oust Couy Griffin, a county commissioner in Otero County, from office. The complaint alleges, among other things, that Griffin participated in the  Capitol riot on January 6th, 2021 and is holding office in violation of Section Three of the Fourteenth Amendment. Griffin is best known as the leader of “Cowboys for Trump.” 

This case begins in a different posture from the suit against Representative Madison Cawthorn. First, the Griffin suit is a quo warranto action that seeks to oust him from office right away. This is not a ballot eligibility challenge, as Griffin is not seeking reelection. Second, Commissioner Griffin is facing criminal charges for his role in the riot. (His bench trial began today.) By contrast, Representative Cawthorn is not facing criminal charges for his role in the riot [yet].

Griffin was convicted today. This will strengthen the Section Three case against him.

The Washington Post reports, Cowboys for Trump founder Couy Griffin guilty of misdemeanor trespassing in second Jan. 6 trial:

Cowboys for Trump founder Couy Griffin was found guilty of misdemeanor trespassing on restricted Capitol grounds Tuesday in the second trial of a defendant charged in the Jan. 6, 2021, attack on Congress. Griffin was acquitted of a second count of disorderly conduct.

An elected Republican county commissioner from Alamogordo, N.M., Griffin posted a video on Facebook of himself on the inauguration stage within the barricaded perimeter of the Capitol grounds during the Jan. 6 riot that forced the evacuation of lawmakers meeting to certify Joe Biden’s election victory. Griffin, 48, turned down an offer to plead to a lesser charge and probation, waived a trial by jury and bet his freedom on a bench trial that started Monday before U.S. District Judge Trevor N. McFadden of Washington.

The conviction gave the Justice Department its second victory at trial in the Capitol riot probe, affirming its decision to level misdemeanor charges punishable by up to one year in jail against hundreds of defendants. A jury earlier this month found Guy Reffitt, a recruiter for a self-styled Texas militia movement, guilty of five felonies, including obstruction of an official proceeding, witness tampering and interfering with police in a riot.

Griffin was not accused of violence or entering the building — one of the few such defendants among more than 750 people federally charged in the Capitol siege investigation after President Donald Trump urged supporters to march to the Capitol. Rioters subsequently injured scores of police, ransacked Capitol offices and caused Congress to evacuate as it met to confirm the 2020 election results.

Defense attorneys David B. Smith and Nicholas D. Smith have said U.S. authorities targeted Griffin for prosecution based on his protected speech. McFadden rejected that contention, finding that Griffin’s alleged leadership role, more blatant conduct and position as an elected official might rationally merit different handling by prosecutors.

McFadden, a 2017 Trump appointee, said video showed Griffin climbing over a stone wall marking the Capitol’s security perimeter, walking over other plastic mesh fencing and metal bicycle rack barriers that had been pushed down, and spending more than an hour on the front railing of the inaugural stage with a bullhorn.

“It’s not clear to me Mr. Griffin knew he was entering a restricted area when [he] climbed over the Olmstead Wall, but by the time he climbed up to the inauguration stage, he certainly knew he shouldn’t be there, yet he remained,” McFadden said.

Although either Griffin or someone nearby went on to be recorded saying they should wait for a door to be broken open yielding access to the inauguration platform, and Griffin later used a bullhorn to lead a prayer that prompted some listeners in the crowd below to kneel or chant “Pray for Trump,” McFadden acquitted the defendant of disorderly conduct.

The law requires that offenders act knowingly to disrupt a government proceeding. Griffin was recorded saying that he thought Vice President Mike Pence had already acted and that the certification was over at the time, McFadden said. Prosecutors said that Congress was only in recess and still in session to certify the election, and their evidence showed that members of the crowd around Griffin were chanting “Decertify!” even as their presence delayed Congress’s return to vote until that evening. However, McFadden found that although Griffin “could have thought business was still taking place, … the burden was on the government” to prove it beyond a reasonable doubt.

The judge set sentencing for June 17, after Griffin’s attorney, Nicholas Smith, declined an offer to immediately sentence Griffin on Tuesday.

Griffin, a former Disneyland Paris rodeo cowboy and self-styled preacher, is a stone mason who created a social media following as a political provocateur. His racially charged mockery of Native American rites got him banned from Mescalero Apache Tribe lands, and he condemned people who view the Confederate flag as racist as “vile scum.” In July 2020, when the National Football League began playing “Lift Every Voice and Sing,” what is referred to the Black national anthem, before games, Griffin suggested that players “go back to Africa and form your little football teams over in Africa and you can play on a[n] old beat-out dirt lot and you can play your Black national anthem there.”

His in-your-face partisan style won him a spot on the ruling council in Otero County, with 65 percent of the vote in 2018, and a personal call from Trump, who later promoted Griffin on Twitter when the latter said on video: “The only good Democrat is a dead Democrat.” Griffin asserted he was speaking metaphorically. Twitter suspended both Trump’s and the Cowboys for Trump’s accounts in January 2021.

Griffin is well-known figure in the small, conservative county, where he has supported a $50,000 taxpayer-funded audit of the 2020 election results, even though Trump carried its 24,000 votes cast by 25 percentage points.

Griffin is one of at least 10 people charged in the riot who either held public office or ran for a government leadership post in the two and-a-half years before the attack, according to an Associated Press tally.

The Washington Post has reported that at least 163 Republicans who have embraced Trump’s false claims are running for statewide positions that would give them authority over the administration of elections. The list includes 69 candidates for governor in 30 states, as well as 55 candidates for the U.S. Senate, 13 candidates for state attorney general and 18 candidates for secretary of state in places where that person is the state’s top election official.

Law & Crime adds:

Griffin was arrested in January of 2021, just days after the mob of Donald Trump supporters overwhelmed police and swarmed the building and temporarily blocked Congress from certifying Joe Biden’s win in the 2020 presidential election. He was recorded standing with a megaphone over the crowd outside the Capitol; according to prosecutors, he also lead the group in a prayer.

Prosecutors say he also posted an interview to his Facebook page, in which he stated that he had “climbed up on the top of the Capitol building” and “had a first row seat” to the violence.

He also promised to return specifically for House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.), as well as possibly Trump himself. According to the criminal complaint against him, he said:

You want to say that that was a mob? You want to say that was violence? No sir. No Ma’am. No we could have a 2nd Amendment rally on those same steps that we had that rally yesterday. You know, and if we do, then it’s gonna be a sad day, because there’s gonna be blood running out of that building. But at the end of the day, you mark my word, we will plant our flag on the desk of Nancy Pelosi and Chuck Schumer and Donald J. Trump if it boils down to it.

Videographer Matt Struck, who prosecutors said ran media for the Cowboys for Trump organization, testified at Griffin’s trial.

According to reporter Jordan Fischer with Washington CBS affiliate WUSA, Struck provided the DOJ with “dozens” of videos of Griffin on Jan. 6. One video reportedly showed Griffin appearing to say that Capitol Police had told the crowd not to enter the area being prepared for Biden’s inauguration. In another video, Griffin could be heard saying “Mike Pence sold us out,” according to the report.

Struck testified for the government pursuant to an immunity agreement.

Griffin had tried to argue that the restricted area charge should be dropped, and his legal team said that proving where Vice President Mike Pence was when Griffin entered Capitol grounds was crucial to proving his guilt. Prosecutors opposed the release of that information, but McFadden ultimately ruled for the defense, resulting in the first public testimony over where Pence was during the chaos of Jan. 6. According to reports, Pence and his family took shelter at an underground loading dock while Trump supporters swarmed police above.

McFadden set sentencing for June 17. Griffin faces up to one year in jail.

In August of 2021, Griffin said he had rejected a plea deal from the government.

Griffin, a Republican, was elected to the three-member commission of Otero County, New Mexico, in 2018, winning 65% of the vote against his Democratic opponent. An effort to recall him was launched in after his arrest for his involvement in Jan. 6, but it failed to get enough signatures by the September deadline.

[On] Monday, Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit to remove Griffin from office.

“Couy Griffin breached the Capitol grounds on January 6th as part of an organized effort to halt the certification of a free and fair election. Under the Constitution, those office holders who, like Griffin, violated their oath by participating in or aiding an insurrection, must be barred from public office,” CREW president Noah Bookbinder said in a press release:

SANTA FE, N.M., — Otero County, New Mexico Commissioner Couy Griffin must be removed from office and disqualified from holding future public office under Section 3 of the 14th Amendment to the United States Constitution based on his participation in the January 6, 2021 insurrection, according to a lawsuit filed today by a group of New Mexico residents. Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman, Boyd, Hollander and Goldberg, P.A, Dodd Law Office, LLC and the Law Office of Amber Fayerberg, LLC serve as co-counsel on the case, which also seeks a court order declaring the January 6th attack on the Capitol and the events surrounding it an insurrection under the 14th Amendment.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin has served as an Otero County Commissioner since January 2019. Upon taking office, he swore an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

Griffin traveled across the country to Washington, D.C. to participate in the January 6th “Stop the Steal” demonstrations, then marched to the Capitol following former President Trump’s speech on the National Mall. While there, he illegally breached the Capitol’s security barriers, and occupied restricted grounds. He remained there even after the mob became violent and overwhelmed law enforcement officials trying to protect members of Congress during the election certification process.

“Couy Griffin breached the Capitol grounds on January 6th as part of an organized effort to halt the certification of a free and fair election. Under the Constitution, those office holders who, like Griffin, violated their oath by participating in or aiding an insurrection, must be barred from public office,” said CREW President Noah Bookbinder. “Couy Griffin has used his public platform to spread the false narrative that the election was stolen from Donald Trump and to defend the attack on our Capitol. His actions on January 6th were part of and contributed to an insurrection, and his tenure in government continues to be a threat to our democracy. It’s time for Couy Griffin to be removed from office.”

In addition to breaching security barriers at the Capitol that day, Griffin took on a leadership position within the mob at the Capitol on January 6th and continuously promoted the events on his social media pages. Videos show Griffin speaking through a bullhorn to the mob and spreading the false narrative that the 2020 presidential election was stolen from former President Trump. Griffin continued after January 6th to defend the attack and suggest a possible repeat of it in the future. He is now facing federal criminal charges for breaching and occupying restricted Capitol grounds and engaging in “disruptive conduct” to “impede or disrupt” Congress’s certification of the 2020 presidential election.

“Couy Griffin, as an elected official, took an oath to uphold the Constitution. We expect to show that his participation in and encouragement of the January 6 insurrection was an attack on our nation and the Constitution. He violated his oath to the Constitution and under the law has forfeited the privilege of serving as an elected official in our county,” said Dodd Law Office, LLC President Christopher Dodd. “That is what this lawsuit is all about. It is intolerable for an elected official to attempt to overthrow our system of government, and Couy Griffin must be removed from office and barred from ever holding office again. We must protect our democracy.”

Under New Mexico law, any private citizen of the state is allowed to file a lawsuit to remove a disqualified county official from office.

“Couy Griffin betrayed his oath of office and his country when he actively participated in what was an unprecedented attack on our democracy,” said Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg. “If we intend for our democracy to survive for another 200 years, and beyond, we must hold such conduct to account. This lawsuit seeks to do just that.”

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1 thought on “First Genuine Test Case Of Using Section 3 Of The 14th Amendment To Disqualify Insurrectionist Office Holders From Office”

  1. Earler this month, a Trump appointed judge blocked the legal challenge to Rep, Madison Cauthorn’s candidacy. “Judge shuts down January 6-based challenge to Rep. Madison Cawthorn’s candidacy”,

    A federal judge on Friday shut down a legal challenge to GOP Rep. Madison Cawthorn’s candidacy from a group of North Carolina voters and advocacy groups who claimed that an old provision of the US Constitution banned him from running because of his role on the January 6 insurrection.

    This means the constitutional challenge against Cawthorn is over, though Friday’s ruling could be appealed.

    The ruling was narrow, with Chief Judge Richard Myers concluding that a Civil War amnesty law passed by Congress in 1872 essentially repealed the 14th Amendment’s “disqualification clause,” which prohibited officeholders from returning to elected positions if they supported an insurrection, but also said Congress could remove that disability with a two-thirds vote.

    -Even someone with a 5th graders civics education knows that an act of Congress cannot repeal or amend a provision of a constitutional amendment. This requires another constitutional amendment.

    State prosecutor Terence Steed said during Friday’s hearing that the 1872 amnesty law only applied retroactively to Confederate officials and troops — and not Cawthorn. He said Cawthorn was relying on an “absurd interpretation” of the law that “defies logic” to claim immunity.

    “The 1872 Amnesty Act did not absolve all future insurrections,” Steed said, pointing out that Congress used the 14th Amendment to disqualify a socialist lawmaker from office in 1919.

    That’s the same interpretation as a Gerard Magliocca, a law professor at Indiana University who is perhaps the leading scholar on the constitution’s “disqualification clause.” He was willing to testify on behalf of the challengers, and believes the old amnesty laws didn’t shield Cawthorn.

    The judge disagreed — but said his ruling was narrow and essentially applied only to Cawthorn.

    “The ruling will be reversed on appeal,” Magliocca told CNN in an interview after the hearing. “There are many problems with the argument that the 1872 law conferred amnesty onto all people forever who would engage in insurrection against the US Constitution. That’s not what it says. And nobody at the time thought that is what the law would do. Not a single person.”

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