For those of us who are tired of waiting for prosecutors to hold accountable Republican-elected officials who participated in the insurrection at the U.S. Capitol on Jan. 6, 2021, a New Mexico judge last week provided a road map for how we, the people, might just be able to ban them — maybe even former President Donald Trump — from ever running for office again.
Obviously, Judge Mathew’s ruling does not have the value of a U.S. Supreme Court decision.
On Tuesday, New Mexico state District Judge Francis Mathew ordered Otero County Commissioner Cuoy Griffin, better known as the founder of Cowboys for Trump, immediately removed from office and barred from seeking future public office for his role in the insurrection. Mathew found that the 14th Amendment’s ban on candidates who swore an oath to the Constitution and then engaged in an “insurrection or rebellion” applies to Griffin.
Obviously, Mathew’s ruling does not have the precedential value of a U.S. Supreme Court decision. And obviously, a county commissioner race in New Mexico is not like the race for president of the United States. But the judge’s well-researched decision can and should be cited by others across the country who want to file their own lawsuits to keep insurrectionists off their ballots.
The lawsuit to disqualify Griffin from the ballot was brought by private citizens living in New Mexico, with the help of Citizens for Responsibility and Ethics (CREW) and local attorneys. Griffin, who represented himself in the two-day bench trial, called the ruling a “total disgrace,” claiming it “was perfect evidence of the tyranny that we’re right now living under.” (There’d been no word by Friday if he would appeal the decision.)
If Trump qualifies to run for president in 2024, will CREW file similar suits to keep him off state ballots? Jordan Libowitz, CREW’s communications director, said in an email Friday, “We're taking a hard look at it, but no decision has been made yet.” However, Ron Fein, the legal director for Free Speech for People, was more definitive on a recent episode of my SiriusXM show. Fein’s organization is also helping private citizens bring insurrection-related ballot challenges, and he said because Trump “is more involved in the insurrection almost more than anyone else,” if he chooses to run in 2024, "we will definitely file multiple challenges” in multiple states.
As for the suit against Griffin, Mathew first found that Jan. 6 met all the definitions of an insurrection in that it was 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.” And he noted that during the trial that followed Trump’s second impeachment trial, one of his own lawyers candidly described Jan. 6 as a “violent insurrection.”
This powerful passage from Mathew’s ruling is key: “The mob ultimately achieved what even the Confederates never did during the Civil War: They breached the Capitol building and seized the Capitol grounds, forcing the Vice President and Congress to halt their constitutional duties and flee to more secure locations.”
The judge then found that Griffin — who had been convicted in March by a federal judge of a misdemeanor for illegally entering a restricted area at the Capitol — had “engaged in” that insurrection in that he had been “‘leagued’ with insurrectionists.” In March, Griffin claimed that he hadn’t climbed a barricade as prosecutors alleged. “That was a step,” he said. “It was a metal step. I used it as a step. ... You can call it a barricade. I call it a step.”
Importantly, though, for people who may be thinking of filing suits to try to stop insurrectionists from running for office in their states, Mathew ruled that a criminal conviction was not necessary to find that someone had engaged in an insurrection. The judge explained that “One need not personally commit acts of violence to “engag[e] in” insurrection” and that “Engagement thus can include non-violent overt acts or words in furtherance of the insurrection.”
He found that the Cowboys for Trump head honcho had mobilized people to attend the Jan. 6 rally with a combination of election lies and inflammatory rhetoric, had marched into the restricted area surrounding the Capitol on Jan. 6 and during the attack had vocally supported the mob breaching the Capitol.
This powerful passage from Judge Mathew’s ruling is key: “The mob ultimately achieved what even the Confederates never did during the Civil War."
The judge’s analysis of what being “engaged” in an insurrection means is important because as Jan. 6 approached, many Republican officeholders engaged in nonviolent overt acts or words in furtherance of the insurrection.” The most glaring and obvious example was Trump, who mobilized people to gather that day for what he promised would be a “wild” event. He also told lies that incited the crowd, and he directed his supporters who were chanting “Fight for Trump” to “walk down to the Capitol” and “Stop the Steal.”
But it wasn’t just Trump. The HuffPost found nearly 60 GOP officeholders were present Jan. 6. Some, such as Texas Attorney General Ken Paxton, who spoke at the rally shortly before the march and the violence began. Doug Mastriano, Pennsylvania’s Republican gubernatorial nominee, was a state senator at the time he spewed 2020 election lies and used campaign money to charter six buses that brought people to Washington on Jan. 6. Video also appears to show Mastriano at the Capitol on Jan. 6 after its security had been breached.
Mastriano acknowledged in May 2021 that he was at the Capitol then, and in a February letter, Rep. Bennie Thomas, D-Miss., chair of the House committee investigating the Jan. 6 attack wrote Mastriano, “Based on your public statements, we understand that you were present during the attack on the U.S. Capitol on January 6, 2021, and that you witnessed 'agitators ... getting in the face of the police' and 'agitators ... start pushing the police up the [Capitol] steps.”
Libowitz, CREW’s communications director, said not every state allows the type of civil lawsuit that was brought against Griffin in New Mexico. But, he said, after the New Mexico win, CREW is “reviewing potential cases across the country.” Of course, different judges could reach different conclusions than Judge Mathew.
That’s where you come in. If you are sick and tired of waiting for prosecutors to charge Jan. 6 politicians with crimes, then this might just be the way for you to step up and do something as American as apple pie: Sue them. File suit against every insurrectionist who dares to appear on your ballot — sue Trump, even — and you may play a pivotal role in preserving our democracy.