Mark Graber, regents professor at the University of Maryland School of Law and constitutional expert, helped make the case for the disqualification of a New Mexico official who took part in the Jan. 6 attack on the Capitol. The case, says Graber, was an important test for efforts to bar from public office anyone who tried to stop Congress from certifying President Joe Biden’s election. That could include the former president, who played a big role in inciting the mob.
Last month in a courtroom in Sante Fe, Graber testified that the words and actions of Couy Griffin, a Republican commissioner of Otero County and co-founder of Cowboys for Trump, met the standard for an insurrectionist, under Section 3 of the Fourteenth amendment. I quote it here, with my emphases in italics: “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 … shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Earlier this year, in federal court, Griffin had been found guilty of entering a restricted area during the Capitol attack.
That led three New Mexico residents, backed by Citizens for Responsibility and Ethics in Washington (CREW), to ask a state judge to remove Griffin from office and disqualify him from future elections. The plaintiffs cited Section 3, the disqualification provision that dates back to the post-Civil War period, but with roots in case law from citizen defiance of the Fugitive Slave Act of 1850.
Evidence presented at Griffin’s trial revealed that Cowboys for Trump helped mobilize the “stop the steal” protest that led to the Jan. 6 attack. Videos showed Griffin using a bullhorn and firing up Trump supporters against former Vice President Mike Pence.
According to The Albuquerque Journal, Griffin “went on a bus tour across the country in the days leading up to the attack, where he urged Trump supporters to rally around the Capitol on Jan. 6. He was a vocal activist during the attack and he continued to speak favorably of the riot in the days after the attack in videos that were posted to social media.”
Last month, the trial judge ruled that Griffin should be removed from office. “He took an oath to support the Constitution of the United States … [and then] engaged in that insurrection after taking his oath,” Judge Francis Mathew found.
Mark Graber was a key witness against Griffin. The law professor has since written an article for Lawfare detailing the history of insurrection — there are fascinating references to a Supreme Court justice from Baltimore and a Monkton farmer who held people in slavery — and reflecting on what it could mean for efforts today to disqualify other officeholders who in some way took part in the Capitol attack.
“Although the Griffin decision is not binding law outside of a judicial district in New Mexico, Mathew’s opinion provides a foundation for current or future legal actions seeking to disqualify past or present Republican officeholders,” Graber writes, citing CREW’s efforts and that of another group to keep Donald Trump’s name off ballots in 2024.
Trump has not been charged with any crimes connected to Jan. 6, though the House select committee investigating the riot made clear that Trump had an outsized role in turning his crowd of supporters into a mob and pointing them toward the Capitol.
In his essay, published Monday, Graber stops short of declaring him an insurrectionist.
“Trump was aware of violent threats on Jan. 6,” Graber writes. He “gave a speech that day that incited the protesters to head to the Capitol, exhibited no concern when the protesters became a mob that invaded the Capitol, and did nothing for hours to assist law enforcement efforts. The extent to which Trump helped plan or instigate the insurgents beyond his speech, however, is controversial and still being investigated by Congress.”
We haven’t been here much in the 150 years since Section 3′s ratification. That’s why Jan. 6 was such a shock to the American system.
But I’ve heard enough to no longer hesitate in calling Trump an insurrectionist. Don’t forget: A federal judge found that Trump probably committed a felony with his words and actions after the 2020 presidential election. “Based on the evidence,” U.S. District Judge David Carter declared in July, “the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.” Carter, ruling on a demand for documents from former Trump lawyer John Eastman, referenced a memo that, he said, “clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021.”
So, even if Trump was not physically at the Capitol, it has become increasingly evident that he was the motivator of those who were. “President Trump summoned the mob, assembled the mob and lit the flame of this attack,” said Rep. Liz Cheney, vice chair of the House select committee investigating the riot.
So what’s missing is a criminal charge and a judicial ruling like the one in the Griffin case — that a sworn official of the government took part in an insurrection against the United States and is, therefore, barred from holding office. If a county commissioner can be disqualified, so can the guy who inspired him.
