September 09, 2022

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CRACKING DOWN ON UNARMED INSURRECTIONIST TRESPASSING. The Justice Department has charged more than 870 people in the Capitol riot investigation. According to DOJ numbers released last month, 264 defendants have been charged with assaulting, resisting, or impeding officers. Of those, 90 have been charged with using a deadly or dangerous weapon or causing serious bodily injury. About 55 have been charged with destruction of government property. Fifty have been charged with conspiracy. More than a dozen members of the Proud Boys and Oath Keepers have been charged with seditious conspiracy.

A larger number, 285 defendants, have been charged with corruptly obstructing, influencing, or impeding an official proceeding — the congressional certification of President Joe Biden's Electoral College victory. And then the largest number of all, 751 defendants, have been charged with the least serious offense, entering or remaining in a restricted building or grounds — also known as trespassing.

More than 350 defendants have pleaded guilty. A much smaller number, a little more than a dozen, has been found guilty at trial. As of August, 116 have been sentenced to prison. Many of the sentences have been substantial. The longest sentence so far, 10 years in prison, has gone to Thomas Webster, a retired New York police officer who was convicted of assaulting a police officer, among other charges.

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That's what the justice system is doing. But several leftist activists and Democratic operatives have seen the cases not in terms of the justice system but as an opportunity to punish some Jan. 6 rioters beyond the sentences meted out by judges and juries. Those activists are seeking to use the 14th Amendment to disqualify some Jan. 6 defendants from holding any public office for the rest of their lives.

The 14th Amendment was ratified in 1868, three years after the end of the Civil War. It is mostly known as a measure to extend constitutional rights to former slaves. But a little-remembered part of the amendment, Section Three, declared that anyone who "having previously taken an oath ... 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" would be banned from ever holding "any office, civil or military, under the United States, or under any state.” The measure was intended to punish U.S. military officers or federal, state, or local public officials who served in the Confederacy. But it was not necessarily intended to be a blanket, permanent ban because Section Three added that "Congress may by a vote of two-thirds of each house, remove such a disability."

"The provision was enforced vigorously during Reconstruction," wrote the historian Gerard Magliocca last year. But in 1872, just four years after it was ratified, Congress passed an amnesty to nearly everyone covered by Section Three. After that, Magliocca continued, "Section Three soon sank from view." In 1898, Congress passed another amnesty covering those who weren't covered by the 1872 amnesty. Section Three was history.

There was just one more use of Section Three, and that was in 1919 when the House of Representatives cited it to expel the first socialist member, Victor Berger, who was convicted of violating the Espionage Act in his opposition to America's involvement in World War I. The Supreme Court later overturned Berger's conviction, and he ran for the House again, winning three more terms.

Now, some on the Left are reviving Section Three in an attempt to disqualify Republicans from office and open up political opportunities for Democrats. The idea is that on Jan. 6, some Republicans "engaged in insurrection or rebellion against the [United States]," in the words of Section Three, and thus are banned by the 14th Amendment from holding public office. A group in North Carolina tried to use Section Three to disqualify Rep. Madison Cawthorn from a Republican primary. (They failed, but Cawthorn lost the primary and will leave Congress in January.) A group in Georgia tried to use Section Three to disqualify Rep. Marjorie Taylor Greene in a GOP primary, also failing.

But now they have a victory. A state judge in New Mexico has ordered Couy Griffin, a county commissioner in Otero County who is also the founder of a group called Cowboys for Trump, removed from office and disqualified from any future office on the grounds of Griffin's participation in the Jan. 6 Capitol riot.

Griffin was undoubtedly present at the riot. In a federal bench trial, he was convicted of entering or remaining in a restricted building or grounds — trespassing. He was acquitted on a charge of disorderly and disruptive conduct in a restricted building or grounds. Griffin was sentenced to 14 days in jail, but since he was held in jail for 20 days after his arrest on Jan. 17, 2021, the sentence was time served.

That is where the group Citizens for Responsibility and Ethics in Washington came in. On March 21 of this year, CREW filed a lawsuit in New Mexico demanding that Griffin be removed from his county position and disqualified under the 14th Amendment. Several prominent legal scholars, including Harvard's Laurence Tribe, Berkeley's Erwin Chemerinsky, and First Amendment defender Floyd Abrams, filed briefs in support of CREW.

A trial was held, and on Sept. 6 New Mexico Judge Francis Mathew ordered Griffin removed from office and banned from holding any future office in the United States. "The historic ruling represents the first time an elected official has been removed from office for their participation or support of the U.S. Capitol riot," CNN reported. "It also marks the first time a judge has formally ruled that the events of January 6, 2021 were an 'insurrection.'"

Mathew's "insurrection" finding was critical to the case. After all, the 14th Amendment provides for disqualification of anyone who, having previously taken an oath to support the Constitution, has engaged in "insurrection or rebellion against the [United States]." Unlike soldiers of the Confederacy who took up arms, Griffin trespassed. How could he be removed from office for that? If the Capitol riot were not an "insurrection," the case against Griffin fell apart. So Mathew declared the riot an "insurrection." This is from his decision:

Based on the trial evidence and argument, the Court concludes that (1) Mr. Griffin took an "oath ... to support the Constitution of the United States" as an "executive ... officer of a state," (2) the January 6 attack and surrounding planning, mobilization, and incitement were an "insurrection" against the Constitution of the United States, and (3) Mr. Griffin "engaged in" that insurrection. The Court therefore concludes that, effective January 6, 2021, Mr. Griffin became disqualified under Section Three of the Fourteenth Amendment from serving as a "Senator or Representative in Congress, elector of President and Vice-President, or hold[ing] any office, civil or military, under the United States, or any state," including his current office as an Otero County Commissioner.

To conclude that Griffin, who was not armed and did not engage in violence on Jan. 6, was guilty of "insurrection," Mathew had to reach back to 1799 and an obscure event known as "Fries's Rebellion." (It is also known in some accounts as "Fries's Insurrection.") Fries's Rebellion was an anti-tax protest in southeastern Pennsylvania in which a bunch of farmers marched on tax collectors and freed a group of tax resisters who had been jailed. President John Adams sent federal troops to stop the protests. There were a number of arrests, and two leaders were tried and convicted of treason. Adams then pardoned them and everyone else involved. The event was soon forgotten.

But not by Judge Mathew. To the judge, Fries's Rebellion presented a way to use the 14th Amendment against Griffin even though Griffin had only been convicted of trespassing. "Section Three's framers and nineteenth-century Americans did not understand an insurrection to require actual violence; intimidation by numbers sufficed," Mathew wrote. "Thus, Fries' Insurrection was considered an insurrection even though there was only intimidation and not actual violence."

Note that in his citation of Fries's Rebellion, Mathew referred to "intimidation by numbers.” That was his way of suggesting that Griffin, simply by being one member of a larger group of protesters and rioters on Jan. 6, was guilty of something far greater than trespassing. Indeed, Griffin's ruling was filled with references to what "the mob" did on Jan. 6 but had fewer examples of what Griffin himself did on Jan. 6. In any event, Mathew found that Griffin had engaged in "insurrection." He order Griffin ousted from his position and barred from ever holding any state or federal office again.

None of this is to defend Griffin's actions on Jan. 6. Yes, he trespassed, but he also cheered on others as they broke into the Capitol. According to court papers, Griffin was not concerned about the violence, saying that "sometimes these sorts of things need to happen in order to send a signal that we're going to quit putting up with their bull crap." He vowed that there would be an even bigger riot to stop Biden's inauguration and said there would be "blood running out" of the Capitol building.

Mathew concluded that Griffin used "language that goes outside of democratic norms, like urging supporters to take to 'the streets' rather than the 'ballot box.'" The judge also said Griffin "dehumaniz[ed] his opponents" by calling them "wicked" and "vile" and by calling on "men" to join him in "battle." Such words "lowered inhibitions of others to engage in violence," Mathew wrote. Taken together, Griffin’s words, and to a lesser extent his actions, were what the 14th Amendment was about, the judge reasoned: "Nineteenth-century Americans would have regarded Mr. Griffin as being 'leagued' with the January 6 insurrectionists because he acted in concert with those insurrectionists and committed several overt acts supporting the insurrection."

The only problem is, this is the 21st Century, not the 19th Century. And federal prosecutors, who have pursued the Capitol riot with extraordinary vigor and determination, making it the biggest criminal investigation ever, charged Griffin only with trespassing and disorderly conduct. And Griffin was acquitted of the disorderly conduct charge. Griffin's behavior is not to be celebrated, but neither does it fit the clear wording, intent, and history of the 14th Amendment's disqualification clause. The amendment simply is not about trespassing, no matter how much Mathew tries to pump it up and turn it into something else.

But look for more cases like this one. Mathew's decision in the Griffin matter is the sort of over-the-top ruling that encourages activist groups like CREW and the Democratic operatives who support them to keep filing lawsuits. "Some Democrats have talked about barring Republicans in Congress from running again on [14th Amendment] grounds," the Wall Street Journal editorial page wrote recently. "But down that road lies more political trouble as politicians use courts, rather than elections, to defeat their opponents. Mr. Griffin is best disqualified by the voters."

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