Why our 14th Amendment lawsuit against a Trump fanatic sets a key American precedent

A state court judge ruled that New Mexico county commissioner Couy Griffin was constitutionally disqualified from office after he participated in the Jan. 6 insurrection.

Noah Bookbinder, executive director of Citizens for Responsibility and Ethics and Donald K. Sherman, deputy director for Citizens for Responsibility and Ethics in Washington
Most Americans have never heard of Couy Griffin. Most Americans are also probably not familiar with Section 3 of the 14th Amendment, also known as the disqualification clause, as it hasn’t received a lot of attention since the end of the Civil War, when it was invoked to keep public officeholders who had joined the Confederacy from holding office again.

Griffin may not be a nationally prominent figure (or at least, he wasn’t until recently), but this case nonetheless has profound significance to all Americans.

But a decision last week by a state court judge in Santa Fe, New Mexico, ruled that Griffin, a county commissioner in Otero County, New Mexico, and founder of the group Cowboys for Trump, was constitutionally disqualified from office after he participated in the Jan. 6 insurrection at the Capitol. Griffin may not be a nationally prominent figure (or at least, he wasn’t until recently), but this case nonetheless has profound significance for all Americans.

Our organization, Citizens for Responsibility and Ethics in Washington (CREW), along with co-counsel, represented three New Mexico residents who sued to remove Griffin from office under a New Mexico law that allows any resident to go to court to challenge the qualifications of a state official. We argued, and the judge agreed, that Griffin was disqualified from office because his participation in the Jan. 6 riot ran afoul of the 14th Amendment. There are many officials who could be challenged based on the disqualification clause — but we concluded that the facts of Griffin’s case and the law in New Mexico made this a good place to start. According to the facts presented at trial and affirmed in the judge’s decision, former commissioner Griffin promoted violent rhetoric before, during and after the 2020 presidential election, and traveled to the Capitol for the Jan. 6 election certification, video taping his threats and allegiance to the insurrection along the way.

This week’s court decision is the first case in which any judge, at any level, has ruled that the Jan. 6, 2021, attack on the Capitol was an insurrection as defined by the Constitution. It reaffirms our basic American commitment to a democratic system with its finding that those who seek to undermine the rule of law and the peaceful transition of power have no place in government.

The disqualification clause states that anyone who swears an oath to the Constitution and then participates in an insurrection is disqualified from holding state or federal office. As the North Carolina Supreme Court found in 1869, the last year one of these cases previously went to trial: “The oath to support the Constitution is the test. The idea being that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.”

Couy Griffin failed that test. Despite taking an oath to support our Constitution, he joined and incited a violent insurrection against the peaceful transfer of power. This was not a close case. The evidence against Griffin presented at trial included testimony from a D.C. police officer injured defending the Capitol that day, a photographer who witnessed the insurrection and Griffin’s role in it, and experts in American constitutional history, political violence and national security. The judge was also shown extensive video footage of Griffin immediately before, on and after Jan. 6. Taken together, it was an overwhelming display. (Griffin had been previously convicted of entering restricted grounds on Jan. 6, 2021, in a separate trial.)

Griffin was a featured speaker on the Women for America First’s “Stop the Steal” bus tour across the country that mobilized and incited crowds to come to Washington. As noted in the judge’s decision, Griffin breached barriers on Jan. 6 with the mob and, very visibly, used a bullhorn to encourage those violently attacking the Capitol. He sought in the wake of Jan. 6 to justify and normalize the actions of that day.

But this case is just the start. This week’s ruling has significance beyond Griffin himself. A court found for the first time that the events of Jan. 6, 2021, constituted an insurrection. A judge, hearing extensive facts and expert analysis, concluded that this was not a protest or a few outliers causing chaos; rather, this was a concerted effort to oppose the execution of federal law. Insurrectionists attempted to stop the constitutionally mandated counting of electoral votes. And the attack did, for the first time in American history, disrupt the peaceful transition of presidential power, a bedrock principle upon which our democratic system of government stands.

The implications of today’s ruling will reverberate outside New Mexico. Because this court ruled this was an insurrection under Section 3 of the 14th Amendment, those officials who, having sworn an oath to support the Constitution, participated in the insurrection, whether physically or by encouraging and inciting it, may be constitutionally disqualified from serving in state or federal office going forward. If other courts agree, that is a principle that should now be applied to other state government officials who supported or were in league with Jan. 6 insurrectionists and to national leaders who incited the attack on the Capitol. It is a principle that should be applied to former government officials, like former President Donald Trump, should they seek to enter government again.

Other efforts to use the disqualification clause to remove several members of Congress from ballots this year yielded important legal decisions but were ultimately unsuccessful. The different legal posture and exceptional evidence in our case contributed to a different result, but the judge’s thoughtful and expansive decision in the case makes it clear that this important 14th Amendment provision can and should apply well beyond Couy Griffin. It will be crucial to take care in evaluating potential future cases to ensure that the facts and the law support a strong argument for disqualification under the Constitution. CREW is now taking a hard look at Trump and other public officials to figure out what additional actions under the disqualification clause might be most worthwhile to pursue.

The 246-year-old American experiment in self-governance cannot continue if our leaders are free to disregard the very principles on which it is based, and even incite mobs to take up arms against the Constitution and laws, without consequence. The Constitution won’t enforce itself: Following the judge’s ruling, we are investigating other potential violations of the 14th Amendment across the country. But it’s up to all of us to play a role.