The Couy Griffin Case: Frequently Asked Questions
On September 6, 2022, Otero County Commissioner Couy Griffin was ordered removed from office by a New Mexico judge, as a result of his participation in the January 6th insurrection and attack on the Capitol. Below, we answer frequently asked questions about this historic case, which CREW and co-counsel brought on behalf of three New Mexico residents.
Former New Mexico Otero County Commissioner Couy Griffin.
Three New Mexico residents.
Plaintiffs’ witnesses at trial included D.C. Metropolitan Police Officer Daniel Hodges, who defended the Capitol on January 6, 2021, and photographer Nathaniel Gowdy, who witnessed and took pictures of Griffin’s conduct at the Capitol on January 6. Griffin testified as a hostile witness in Plaintiffs’ case, during which Plaintiffs presented extensive video evidence of Griffin’s actions on and around January 6. Plaintiffs also called two expert witnesses. Professor Mark Graber, an expert on constitutional history, testified about the original understanding of Section Three of the Fourteenth Amendment. Dr. Rachel Kleinfeld, an expert on democracy, conflict, and political violence, explained and contextualized Griffin’s role as a mobilizer, inciter, and normalizer of political violence. Griffin called no witnesses.
See State ex rel. White v. Griffin, No. D-101-CV-2022-00473, 2022 WL 4295619 (N.M. Dist. Ct. Sept. 6, 2022) [hereinafter Griffin Judgment].
New Mexico law provides that state officers, like Griffin, can be sued in Santa Fe, the state capital.
Griffin was initially represented by counsel for several months in federal court proceedings in which he unsuccessfully tried to get the disqualification lawsuit against him dismissed. At trial in state court, however, Griffin appeared pro se, meaning that he represented himself in court. Following his removal from office by the district court, Griffin filed a notice of appeal of the court’s ruling pro se.
Section Three of the Fourteenth Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as a federal or state officer then “engaged in insurrection or rebellion.” This clause was added to the Constitution after the Civil War to bar former Confederates and future insurrectionists from holding public office.
Under New Mexico law, any private citizen of the state may file a lawsuit under the state’s quo warranto statute to remove a disqualified official from office. Because Section Three imposes a qualification for office, the statute allowed the plaintiffs to challenge Mr. Griffin’s ability to hold office, now and in the future, based on his participation in the January 6 insurrection. The lawsuit aimed to establish three points: (1) that as Otero County Commissioner, Griffin took an oath to support the U.S. Constitution; (2) that the January 6, 2021 attack and surrounding planning, mobilization, and incitement were an insurrection against the U.S. Constitution, and; (3) that Griffin engaged in that insurrection and, in accordance with Section Three of the Fourteenth Amendment, should be disqualified from holding public office.
The Court ruled that “the January 6, 2021 attack on the United States Capitol and the surrounding planning, mobilization, and incitement constituted an ‘insurrection’ within the meaning of Section Three of the Fourteenth Amendment.” The Court further ruled that Mr. Griffin “engaged in” that insurrection, after taking an oath to support the Constitution, by mobilizing, inciting, and then joining the mob that attacked the Capitol on January 6. As a result, the Court concluded that Griffin is constitutionally ineligible and barred for life from holding any federal or state office in the United States.
No, Mr. Griffin was disqualified not just for trespassing at the Capitol on January 6, 2021, but also for participating in the “surrounding planning, mobilization, and incitement” which caused the insurrection. The Court found that, ahead of the attack, Mr. Griffin and his organization “Cowboys for Trump” played a significant role in mobilizing a violent mob to assemble in Washington, D.C. to stop Congress from certifying the 2020 presidential election as mandated by the Constitution. He was a featured speaker on a cross-country “Stop the Steal” road tour where he incited crowds, normalized violence, and encouraged Trump supporters to show up en masse in Washington D.C. on January 6. He flooded social media with similar messaging, and then traveled to D.C. to participate in the insurrection. On January 6, he joined the mob in breaching multiple security barriers and occupying restricted Capitol grounds, contributing to law enforcement being overwhelmed and the congressional proceedings being delayed. After January 6, Mr. Griffin took to social media to celebrate the violence he witnessed that day and previewed a more brutal attack on the Capitol to prevent President Biden from taking office where there would be “blood running out of that building.”
Yes. The Court ordered Griffin’s removal from the Otero County Commission “effective immediately,” and ruled that he became constitutionally disqualified from holding public office effective January 6, 2021. The Otero County Commission took prompt action to remove and exclude Griffin from office in compliance with the court’s order.
The Court defined the events of January 6 as an insurrection against the U.S. Constitution, ruling that “[t]he term, ‘insurrection,’ as understood by knowledgeable nineteenth-century Americans and Section Three’s framers, referred to an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.” The Court made clear both that an insurrection does not require actual violence and that it includes related planning, mobilization, and incitement.
The Court cited Reconstruction-era case law establishing that a person can be disqualified for “engaging in” insurrection even if they have not been convicted of a crime and even if they did not engage in violence; the test for disqualification is instead whether the person “‘voluntarily aid[ed] the [insurrection], by personal service, or by contributions, other than charitable, of anything that [is] useful or necessary’ to the insurrectionists’ cause.”
This case is the first time since 1869 that a court has ordered a public official removed from office under Section Three of the Fourteenth Amendment, and the first time any court has ruled the events of January 6, 2021 an insurrection as defined by the Constitution.
The Disqualification Clause was added to the Constitution during Reconstruction to bar Confederates and future insurrectionists from public office. Following its ratification, it was used at the state and federal level against former Confederates. However, in 1872 Congress granted amnesty to most former Confederates, relieving them of any disability under Section Three. Since then, Section Three has only been successfully invoked twice. First in 1919 when the U.S. House of Representatives refused to seat Victor Berger under Section Three after he was found guilty of violating the Espionage Act (Berger was seated in a later Congress after his conviction was overturned on appeal) and second in our case removing Couy Griffin from office.
Section Three applies to all federal, state, and local officeholders who swear an oath to support the Constitution of the United States. We believe there are other current and former officeholders throughout the country who, under the Griffin court’s standard, should be disqualified from office based on their participation in the January 6 insurrection before and during the attack on the Capitol. In addition to the ability of private parties to bring suits such as our clients’, the obligation to exclude and disqualify these individuals will be borne by many federal and state officials throughout our country, including Congress who can refuse to seat members and members elect, Secretaries of State who can challenge the qualifications of would-be candidates to be on the ballot, and state Attorneys General who can challenge the qualifications of current officeholders by instituting quo warranto proceedings.
We are currently taking a hard look at whether to pursue Disqualification Clause challenges against other current or former officials.
Griffin appealed the trial court’s decision to the New Mexico Supreme Court on September 20, 2022. Under the state’s quo warranto statute, this appeal will be expedited by the court and could be heard before the end of 2022.
No. As the Griffin court explained, Section Three imposes a qualification for office; it is not a criminal penalty and does not require a prior criminal conviction.
No. As Judge Mathew noted in his decision, Mr. Griffin himself tried to undermine the democratic process when, on January 6, he sought to subvert the results of a free and fair election which would have disenfranchised millions of voters. This decision is not undermining our democracy; it is safeguarding it.
Judge Mathew further explained that “the Constitution itself reflects the will of the people and is ‘the supreme law of the land.’” The Constitution contains multiple qualifications for officeholders, including qualifications related to age, citizenship, and residency. Section Three is simply another constitutional qualification, forbidding insurrectionists and rebels who violated their constitutional oaths from ever holding public office again. Ensuring that our elected leaders meet all constitutional qualifications does not subvert the will of the people; it advances it.