Effort to bar Jan. 6 figures from office notches historic win. What now?

Now it’s made even more history: Someone found to have engaged in insurrection that day has been disqualified from office, for what appears to be the first time in 150 years.

A New Mexico judge on Tuesday removed Otero County commissioner Couy Griffin by invoking the 14th Amendment’s prohibition on those who engaged in insurrection from serving in office. Some have sought to wield that seldom-invoked provision against members of Congress, without success, and even floated using it against Trump.

Success in the latter scenario remains unlikely, especially in the absence of a criminal conviction. But legal experts say the ruling in New Mexico is significant nonetheless — especially if it holds up.

“If this ruling stands up on appeal, it sets a significant precedent for the next election cycle,” said Gerard Magliocca, a constitutional scholar at Indiana University who has studied Section 3 of the 14th Amendment. “After all, if Couy Griffin is disqualified from holding office for his role in Jan. 6, then shouldn’t Donald Trump be disqualified for his even greater role in Jan. 6th?”

Magliocca said the issue could arise in a number of ways moving forward and is ripe for the Supreme Court to litigate before Trump might run for and potentially win the presidency in 2024.

The text of Section 3 of the 14th Amendment states (key parts bolded):

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.

The last time elected officials were disqualified from office using the 14th Amendment appears to be 1869, shortly after the Civil War and the ratification of the 14th Amendment. Congress used the 14th Amendment to disqualify Socialist Rep. Victor Berger in 1919, but not the insurrection provision specifically, and this was not a court decision. (Berger was later seated after his espionage conviction was overturned.)

Since Jan. 6, activists have sought to disqualify several members of Congress who supported questioning or overturning the 2020 election results, including Reps. Madison Cawthorn (R-N.C.), Jim Banks (R-Ind.) and Marjorie Taylor Greene (R-Ga.). Most of these cases fizzled quickly, and none have succeeded. In Greene’s case, she was forced to testify, but ultimately was not disqualified.

Griffin’s case differs from the others’ in one crucial way: He was actually part of the crowd that stormed the Capitol and was later convicted of his role. Indeed, in allowing Greene to remain in office, a judge had emphasized there was “no evidence to show that Rep. Greene participated in the Invasion itself” or “communicated with or issued directives to persons who engaged in the Invasion.” Griffin was much easier to tie directly to the insurrection, and he has now been found to have directly engaged in it.

At the same time, Griffin’s conviction was for misdemeanor trespassing, for which he was sentenced to 14 days and a $3,000 fine. And a judge acquitted him of disorderly conduct.

(Griffin is the founder of a group called Cowboys for Trump, which has been promoted by the former president. He has occasionally surfaced in national news for his violent rhetoric and his efforts to impugn the election results in his home state as recently as this summer.)

The judge in the case, District Judge Francis J. Mathew, was unsparing in ruling that Griffin is disqualified from office. He acknowledged that Griffin was not criminally convicted of insurrection and there is no evidence that Griffin engaged in violence himself. But he found that Griffin’s actions met the standard set forth by the 14th Amendment, citing Griffin’s violent rhetoric and evidence of his actions at the Capitol.

“The Court concludes that Mr. Griffin’s crossing of barricades to approach the Capitol were overt acts in support of the insurrection, as Griffin’s presence closer to the Capitol building increased the insurrectionists’ intimidation by numbers,” wrote Mathew, who was appointed to the bench by former Republican Gov. Susana Martinez. “Mr. Griffin’s marching with the mob all the way to the inaugural stage, knowing the mob’s insurrectionary purpose, likewise constitutes an overt act.”

Griffin’s disqualification from office is not only retroactive to Jan. 6, 2021; he is also “barred for life” from holding any civil or military office in the future.

(Griffin did not immediately respond to a request for comment. In a written closing statement in court, he had argued that he had been at the Capitol to lobby vice president Mike Pence to not certify the election results, and that, “In no way does that pertain to nor support insurrection/rebellion,” reported the Albuquerque Journal. The judge said Griffin’s many defenses were not credible, and nor was his summary of his role on Jan. 6.)

Whether this will ultimately stand up if appealed remains a major question — and one that could have far-ranging implications. While the decision of a state court isn’t binding elsewhere, New York University’s Daniel Hemel noted, it could embolden similar efforts to disqualify people from office with more direct ties to the insurrection — up to and including Trump.

Another state lawmaker, then-West Virginia state Del. Derrick Evans, was sentenced to three months in jail this summer for committing civil disorder on Jan. 6. Evans resigned shortly after the insurrection and before he was charged, but he has flirted with an attempted political comeback.

In several high-profile races, those who didn’t storm the Capitol but were otherwise involved in the Jan. 6 proceedings have won their party’s nomination. They include GOP gubernatorial nominees Doug Mastriano in Pennsylvania and Dan Cox in Maryland, who both organized buses for the “Stop the Steal” rally. A Senate Judiciary Committee report stated that Mastriano and his wife “took part in the January 6 insurrection, with video footage confirming that they passed through breached barricades and police lines at the U.S. Capitol.” (Mastriano has said he never entered the Capitol itself, and he has been charged with no crimes.)

Magliocca said the New Mexico decision could reverberate, not just for people like Mastriano, but if Democrats retain control of Congress and want to challenge the seating of certain Republicans tied to Jan. 6. He also said that, if appealed, it could give the Supreme Court an opportunity to weigh in on this question without directly deciding on a case involving Trump.

“They’ve got to resolve the question of Trump’s eligibility as soon as possible. He’s going to run, and we’ve got to know whether he’s allowed to run or not,” Magliocca said. “It would be helpful if they would take this opportunity to rule really for the first time what Section 3 means.”

Also worth weighing here, Hemel noted, is whether disqualification is an appropriate remedy. The disqualification of Berger, for instance, was later widely regarded as overreach.

“As a strategic matter, I’m skeptical that disqualification under Section 3 of the 14th Amendment is the best way — or even a productive way — to fight back against anti-democratic forces across the country,” Hemel said. “Trump’s attack on democracy after the November 2020 election started out as an attempt to use the judicial process to deprive voters of their choice of leader. There is an uncomfortable irony when, in the aftermath of that attack, we purport to defend democracy by using the judicial process to deprive voters of their choice of leader.

Hemel added: “I wouldn’t want Couy Griffin to be my county commissioner, or anyone’s county commissioner, but I think defenders of democracy need to think long and hard about whether judicial disqualification is the wisest approach.”

Advocates for that approach now have a victory under their belts, though. And while circumstances might make that difficult to replicate, it’s nonetheless a historic marker of what transpired 20 months ago.