September 6, 2022
Plenty of history — very bad history — was made on Jan. 6, 2021. For the first time since the War of 1812, the U.S. Capitol was breached. It’s the first time a U.S. president has sought to interrupt the peaceful transfer of power. The sheer number of members of Congress who voted both against certifying the election and, later, to convict Donald Trump at his impeachment trial had few if any historical parallels.
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.
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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.
Read Effort to Bar Jan. 6 Figures from Office Notches Historic Win. What Now?.