The seditious insurrectionists have filed their response to the lawsuit: “Who me? I’m innocent I tell ya! I was framed!” (the famous last words of every criminal defendant, ever).
Howard Fischer reports, Finchem, Biggs say Jan. 6 roles don’t disqualify their candidacies (yeah, it does):
Two candidates are asking judges to throw out complaints they can’t legally run based on contentions they are guilty of insurrection for their roles in the Jan. 6, 2021, riot at the U.S. Capitol.
State Rep. Mark Finchem and U.S. Rep. Andy Biggs say through their attorneys [by Motions to Dismiss] there is no basis for the claims, by an organization called Free Speech for People, that they are constitutionally barred from office. Exhibit No. 1, they say, is that neither of them has been convicted of anything, much less charged with a crime [yet].
AZ lawmakers disqualified from future office under 14point3:
– Rep. Paul Gosar ❌
– Rep. Andy Biggs ❌
– State Rep. Mark Finchem ❌We’ve sued these oath-breaking insurrectionists for contributing to the 1/6 insurrection. Learn more here: https://t.co/MpyfMUvzRG pic.twitter.com/qxUbs4zfcg
— FreeSpeechForPeople (@FSFP) April 12, 2022
UPDATE:
Charlotte Costello, et al. v. Rep. Paul Gosar, et. al., assigned to Judge Christopher Curry, consolidated cases No. CV2022-004321. Oral Argument: April 20, 9:00 a.m. Trial: April 25-27. See Docket. See Verifed Complaint.
Carrie Goode et al. v. Rep. Andrew Biggs, et al., assigned to Judge Christopher Curry, consolidated cases No. CV2022-004321. Oral Argument: April 20, 9:00 a.m. Trial: April 25-27. See Docket, See Verified Complaint.
Thomas Hansen et al. v. Rep Mark Finchem, et al., assigned to Judge Christopher Curry, consolidated cases No. CV2022-004321. Oral Argument: April 20, 9:00 a.m. Trial: April 25-27. See Docket. See Verified Complaint.
“We don’t allow random members of the public to accuse politicians of a crime and remove them from office,’’ Finchem’s attorney, Jack Wilenchik, told Capitol Media Services on Monday. “If we did, then, Lord knows, the courts would be full of this kind of thing every day.’’
This unethical GQP lawyer was among the “Kraken team lawyers” retained by Rudy Giuliani and Sidney Powell in the first leg of the Coup Plot to overturn the election, flooding the courts with frivolous lawsuits alleging fraud in the 2020 election. At least eight lawsuits were filed in Arizona, all eventually dismissed for lack of any credible evidence.
The “Kraken team lawyers” all had bar complaints filed against them for violating their oath as officers of the court in assisting the Coup Plot to overturn the election. The Arizona State Bar is notorious for not disciplining lawyers with political connections (because the GQP-controlled Arizona Legislature will retaliate against the State Bar and its legislative agenda if it does).
The last reporting I saw, several bar complaints had already been dismissed, but the bar complaint against Jack Wilenchik was still pending. Complaints against 9 attorneys involved in election lawsuits dismissed by Arizona Bar; 12 still pending (March 2021): “Other attorneys named in the complaints that are still pending include Sue Becker, Julia Zuszua Haller, Brandon Johnson, Howard Kleinhenbdler, Alexander Kolodin [running for the Arizona House, new District 3] , Lee Miller, Emily P. Newman, Christopher Viskovic, Dennis I. Wilenchik and John “Jack” D. Wilenchik.”
Jesus Christ Arizona State Bar, Rudy Giuliani has already had his law license suspended by the State of New York and the District of Columbia, and Sidney Powell (and her sidekick Lin Wood) were sanctioned by the State of Michigan, and the Texas State Bar’s disciplinary committee has filed a petition against Sidney Powell, alleging that she committed professional misconduct in lawsuits contesting the results of the 2020 presidential election. Texas Bar Files Disciplinary Lawsuit Against Former Trump Lawyer Sidney Powell.
To the best of my knowledge, none of the Arizona “Kraken team lawyers” have been sanctioned by the Arizona State Bar. None (that I have seen reported). Please enlighten me with the status of these bar complaints, Arizona State Bar.
And now we have an unethical “Kraken team lawyer” defending the Coup Plotters who engaged in a seditious conspiracy, conspiracy to defraud the United States, and obstruction of an official proceeding, if not actually inciting insurrection – certainly provided aid and comfort to insurrectionists by their actions – and none of them has faced any accountability for their traitorous actions in Arizona. WTF?
Howard Fischer continues:
“If the courts were to even attempt to hold such a proceeding, then it would not only encourage countless more cases in which political candidates claim their opponent is unfit to hold office due to commission of a crime, but the trial would also fail to satisfy basic constitutional guarantees of due process in criminal cases,’’ Wilenchik said.
WRONG! Section 3 of the 14th Amendment is the only constitutional bar to holding office. Candidates who are barred from running for office by a criminal conviction under Arizona law are already subject to candidate disqualification challenges. A Section 3, 14th Amendment challenge is so exceedingly rare, this is the fist time since 1919.
Fourteenth Amendment
Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Congress only removed the disability of former Confederate sympathizers, this constitutional provision remains in full force and effect for all subsequent acts of insurrection and rebellion against the United States. It was a prophylactic measure to discourage future acts of insurrection and rebellion after the horrors of the Civil War.
But the outcome of the lawsuits filed last week against the candidacies of Arizona Republicans Finchem, Biggs and U.S. Rep. Paul Gosar could turn on finer legal arguments of what the Fourteenth Amendment means.
A provision of the 1868 amendment, approved in the wake of the Civil War, says that anyone who “engaged in insurrection or rebellion’’ is precluded from holding any office in federal or state government.
Free Speech for People, a national organization involved in election issues, contends the alleged activities of all three in planning what happened on Jan 6. meet that definition.
And in the case of Finchem, an Oro Valley Republican who now is running for secretary of state, he was at the Capitol that day but says he did not go inside.
The legal arguments presented by challengers are a stretch, at best, said Biggs’ attorney Kory Langhofer.
Another “Kraken team lawyer” for whom the State Bar dismissed his bar complaint (because he represents the Arizona Republican Party, don’t let anyone tell you any differently).
“Even if we assume all the facts they said are true, it wouldn’t constitute insurrection,’’ he said. “’Insurrection’ has a particular meaning.”
He said it’s more than doing “mean things.’’
C’mon Howie, cite the damn statute: 18 U.S. Code § 2383 – Rebellion or insurrection:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
See also, 18 U.S. Code § 2384 – Seditious conspiracy:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
The bigger legal question is whether, even assuming the definition fits, any of that can be used in a state court action to knock a candidate off the ballot.
“To date, Congress has enacted no legislation that would provide a state court with the authority to determine that a person is barred from holding public office under the Disqualification Clause (of the Fourteenth Amendment), especially in an expedited civil proceeding such as this,’’ Wilenchik wrote in legal filings.
“To the contrary, Congress has seen fit to address the penalties for engaging in violent rebellion only though criminal statutes which provide that such persons — following a proper indictment, trial, conviction and entry of judgment, of course — ‘shall be incapable of holding any office under the United States,’” he continued.
Section 3, 14th Amendment diqualification is a federal constitutional claim. However, state courts are the court of original jurisdiction for candidate qualification challenges, and the 14th Amendment expressly includes “a member of any State legislature.”
The trial judge could resolve this conflict by ordering removal of the case to federal court to determine the constitutional question, and then return to state court with that decision to determine the candidate qualification question.
However, this would defeat the expedited nature of candidate qualification challenges. The trial court is likely to cite the Purcell prcinciple, i.e., it is too close to the election to make any changes to the ballot. The laws never contemplated insurrectionist candidates after Congress removed the disability of former Confederates in the 1870s. It just hasn’t happened, until it did, in 2021.
Langhofer said the lawsuits are even more problematic when trying to keep someone from running for Congress.
“Only Congress can judge the qualifications of its members,’’ he said. “And whether you are an ‘insurrectionist’ is, in fact, a qualification for membership.’’
And if elected, Congress could conceivably refuse to seat these insurrectionists in the next Congress, as it did with Representative Victor Berger of Wisconsin, the First Socialist Member of Congress in 1919 for his opposition to World War I.
Moreover, Langhofer pointed out that all three of the defendants are not just candidates but have, in fact, been holding office for years.
“They knew more than a year ago who was running,’’ Langhofer said of the challengers.
He pointed out that the Fourteenth Amendment not only precludes someone from seeking office but also from holding office in the first place. Yet Langhofer said those who filed suit didn’t challenge the officials’ ability to be in office now, but instead waited until after the April 4 filing deadline for candidates for the 2022 election to file suit — and only to keep them off the ballot.
That last-minute maneuver does not provide the time for a proper trial, Langhofer said.
It’s also a violation of a legal concept known as “laches,’’ in which courts can throw out claims where plaintiffs knew about the facts but waited to file suit, he said.
This is a total bullshit argument. The candidate filing deadline was April 4. You are not officially a candidate for the ballot until you file. The candidate qualification challenge period is within 10 days after the filing deadline. This candidate qualification challenge was filed two days after the filing deadline. This candidate qualification challenge is timely filed.
“We all have to scramble,’’ Biggs’ attorney said. “We’re not going to be able to bring in witnesses, do discovery, things like that. You can’t bring a major constitutional case at the very last minute.’’
Court hearings were originally scheduled to begin later this week but have been delayed.
Like I said, the trial court is likely to cite the Purcell prcinciple, i.e., it is too close to the election to make any changes to the ballot. It is the easy out for the court.
And c’mon Howie, where’s your “both-siderism” reporting? No comments from the plaintffs or Free Speech For People in response?
"Words matter. And either the words in the U.S. Constitution matter or they don’t. Because it is there in black and white in Section 3 of the 14th Amendment."
Read this @azcentral op-ed on why AZ Reps. Biggs, Gosar, and State Rep Finchem are disqualified.https://t.co/vfGSKPSQJZ
— FreeSpeechForPeople (@FSFP) April 12, 2022
E.J. Montini writes at the Arizona Republic, Honor the Constitution and ban Arizona’s insurrectionists from holding public office:
Words matter. And in the 245-year life of the United States of America, no words matter more than those in the Constitution.
Or so we say.
Lately, however, that doesn’t seem to be the case. At least not with Republicans, who have long called themselves the “the party of the Constitution.”
Because if words mattered, if the Constitution mattered, the GOP would fully support the effort to bar U.S. Reps. Andy Biggs and Paul Gosar, as well as state Rep. Mark Finchem from holding office.
If words matter, if the Constitution mattered, “the party of the Constitution” would already have dumped these three Republican politicians from Arizona, as well as a number of others from different states, for their aid, comfort and support of those involved in the Jan. 6 insurrection.
It’s laid out in the 14th Amendment, Section 3
Instead, the party is silent. With a campaign consultant for Gosar calling the lawsuit aimed at keeping his guy and the others off the ballot “frivolous.”
The reason “the party of the Constitution” should already have sent these politicians packing is laid out, simply and succinctly, in Section 3 of the 14th Amendment of the Constitution.
But it is not.
It reads:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
An organization called Free Speech for People is helping citizens file lawsuits that would bar politicians who were linked to the insurrection from seeking office.
Cawthorn was given a Civil War-era free pass
One of the first suits was filed against Republican Rep. Madison Cawthorn of North Carolina.
Unfortunately, a [Trump-appointed] federal judge hearing that case ruled that an 1872 amnesty law, meant to allow politicians from the defeated Confederacy to continue to seek and hold office, somehow applied to the insurrection of 2022.
The fact is, no law passed by Congress can supersede something in the Constitution. That can only be done by another amendment.
Still, the effort to stop Cawthorn, so far, has failed.
Even so, Ron Fein, legal director for Free Speech for People, pointed out in a statement, “The court did not rule that Cawthorn is innocent of insurrection. And most importantly, its decision on the 1872 amnesty act does not set future precedent for any court.”
Meaning, another judge in another court could rule differently.
And should.
Try to keep up, E.J. Court Revives Challenge To Madison Cawthorn’s Reelection Effort:
A federal appeals court has revived a constitutional challenge to Rep. Madison Cawthorn’s (R-N.C.) right to run for reelection because of his support for insurrectionists who attacked the Capitol on Jan. 6, 2021.
The U.S. Court of Appeals for the Fourth Circuit ordered earlier this week that a hearing against an injunction halting the challenge obtained by Cawthorn be held May 3. The Republican primary in Cawthorn’s district is May 17.
* * *
Cawthorn won an injunction from a Donald Trump-appointed federal judge last month against the challenge. The judge ruled that a federal Amnesty Act for those who participated in the Civil War against the government overrode the clause — though several attorneys have argued that a law cannot countermand the Constitution.
The Fourth Circuit court this week denied a stay in the case, but it granted an expedited appeal hearing.
In addition, Rep. Marjorie “Q” Greene )(R-GA) is going to have to answer in court. 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 in a similar case, which blocked the same challenge against Rep. Madison Cawthorn, a North Carolina Republican.
Totenberg said she will issue a ruling next week, likely on Monday [no decision yet]. 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.
Keep an eye on these cases.
E.J. Montini continues:
Biggs, Gosar and Fichem played a part in Jan. 6
You may recall the now infamous video made by “Stop the Steal” organizer Ali Alexander in which he says, “I was the person who came up with the Jan. 6 idea with Congressman Gosar, Congressman Mo Brooks (R-Ala.) and then Congressman Andy Biggs. We four schemed up of putting max pressure on Congress while they were voting so that who we couldn’t lobby, we could change the hearts and the minds of Republicans who were in that body hearing our loud roar from outside.”
Ali gave a deposition to the House committee investigating the insurrection, and has also agreed to cooperate with a grand jury looking into the attack on the Capitol.
Likewise, Finchem, running for secretary of state in Arizona, was at the Capitol that day. He spoke at a “pre-rally” event and had been introduced by Ali as a “friend.”
On Jan. 6 he tweeted a photo of demonstrators at the capitol and wrote, “What happens when the People feel they have been ignored, and Congress refuses to acknowledge rampant fraud. #stopthesteal”
Either we believe the Constitution or … who are we?
So, it’s simple.
Words matter.
And either the words in the U.S. Constitution matter or they don’t.
Because it is there in black and white in Section 3 of the 14th Amendment.
If we believe in oaths – believe that those who swear to “preserve, protect and defend the Constitution of the United States” must be held to that promise – then none of the insurrectionists from Jan. 6, and none of those who gave them aid or comfort, would be permitted to hold elected office.
None of them.
What I have been arguing since January 2021.
Discover more from Blog for Arizona
Subscribe to get the latest posts sent to your email.