The wages of insurrection

The big news in the United States yesterday (Tuesday there) might not sound very big it first: at was the removal from office of a county commissioner in New Mexico. But its national implications are huge.

You can read the story here in the New York Times, and the full judgement here. Put briefly, district court judge Francis Mathew ruled, on a petition from several New Mexico citizens, that Couy Griffin, one of the three elected commissioners of Otero county, in the south of the state, was disqualified from office under the provisions of the fourteenth amendment, for having “engaged in insurrection” against the United States.

The last time this provision was successfully invoked was more than a hundred years ago: in 1919 the House of Representatives refused to seat a socialist member, Victor Berger, because he had been convicted under the Espionage Act (yes, the same act Donald Trump is alleged to have breached by retaining government documents) for his anti-war activities. His conviction was later overturned and he sat in congress for three terms.

Griffin had been convicted, earlier this year, not of sedition or even of disorderly conduct but merely of trespassing, for his part in the attack on the US Capitol on 6 January 2021. (He was sentenced to 14 days imprisonment.) But judge Mathew ruled that no prior conviction was necessary; the petitioners just had to establish, on the preponderance of the evidence, that Griffin had in fact engaged in insurrection.

And that wasn’t hard, although it was probably made easier by the fact that Griffin represented himself in court and was found “not … to be a credible witness.” The judge found that although he had not personally committed acts of violence, he “voluntarily aided the insurrectionists’ cause,” “joined and incited the mob” and “incited, encouraged and helped normalize the violence.” And he also had no difficulty finding that the attack on the Capitol amounted to an insurrection, noting that even Trump’s own defence lawyers had referred to it that way.

Apart from those directly involved, no-one much cares about who gets to serve as a county commissioner in New Mexico. But the reasoning of this ruling applies much more widely: to anyone who, having previously taken an oath of office under the constitution, participated in the 6 January attack. That includes numerous state and local officials, and may well extend to some Republican senators and representatives.

It also, most obviously, may apply to Trump himself – who, while not present at the Capitol, clearly incited the mob beforehand as well as being at the apex of the whole plot to overturn the 2020 election. Expect this to become a much bigger issue as Trump edges towards officially seeking the Republican nomination for 2024. Luke Broadwater and Michael Schmidt in today’s Times canvass some of the issues involved; this note from the Congressional Research Service is also very good on the legal background.

The fourteenth amendment, adopted in 1868, has a twofold character. On the one hand it was designed to address very specific issues arising from the recently-ended civil war: citizenship for former slaves, guarantees for their equal treatment, liquidation of the Confederate government and disqualification of those who had supported it. On the other hand, it was intended as a broad statement of principle, recommitting the nation to its goals of liberty and the rule of law.

Most of the amendment’s subsequent legal history has concentrated on that second aspect – as, for example, in the extension to the states of the guarantees in the Bill of Rights (or not, as in Dobbs v. Jackson Women’s Health Organization). But Griffin’s case reminds us that the first aspect is of more than historical interest: that preventing insurrection, and keeping its perpetrators away from positions of trust, is a continuing concern.

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