Couy Griffin of "Cowboys for Trump"
The United States Supreme Court (SCOTUS) might have backed itself into a corner when it signaled it would allow Donald Trump to remain on the Colorado ballot even though the former president engaged in a nationally televised insurrection on Jan. 6, 2021, and therefore is disqualified under 14th Amendment, Section 3 of the U.S. Constitution. Justices repeatedly stated at recent oral arguments that they intended to find a way to keep Trump on the ballot, violating both the constitution and their own precedent in the process. Now, we learn that SCOTUS, in trying to find a clever way to keep Trump on the ballot, might have created a sticky wicket for itself. How did that happen? An article at The Hill explains, under the headline "Supreme Court to confront 14th Amendment disqualification — and not just Trump’s." Reporter Zach Schonfeld writes:
Former President Trump isn’t the only public official whose disqualification under the 14th Amendment’s insurrection ban has landed at the Supreme Court.
Just days after the justices heard oral arguments in Trump’s historic case, they are scheduled to consider taking up another official’s disqualification: a New Mexico county commissioner who participated in the Jan. 6, 2021, Capitol attack.
Before the Trump challenges gained steam, a state judge booted from office Couy Griffin, who had been found guilty of entering a restricted area during the riot.
Griffin, the founder of "Cowboys for Trump," is now urging the justices to hear his appeal, even as they begin writing their opinion in Trump’s case. Griffin’s petition is scheduled to be discussed at the justices’ closed-door conference Friday (2/16/24).
“At this point about everything happening with Trump legally at the top is happening to me here at the bottom. Many things are in tandem. And most greatly compliment each other,” Griffin wrote on X, formerly known as Twitter, shortly after oral arguments in Trump’s case, which was born out of a challenge in Colorado.
Originally designed to keep ex-Confederates from returning to power, the Civil War-era provision bars people who took an oath to support the Constitution and then engaged in insurrection from returning to office.
After falling dormant for decades, several public officials — though none more than Trump — began facing efforts after the Capitol attack to block them from office under the 14th Amendment’s Insurrection Clause.
Most have been unsuccessful. A group of voters challenged Rep. Marjorie Taylor Greene (R-Ga.)’s 2022 House candidacy, ending with the Georgia Supreme Court declining to review a decision tossing the case.
While the Trump case in Colorado has received by far the most attention, Section 3 challenges are being heard in a number of states. Colorado and Maine are the only states to reach the merits of the Trump matter, and both found -- correctly -- that he is disqualfied. The question now seems to be this:Will SCIOTUS find a way to uphold Griffin's conviction, while letting Trump skate? We have little doubt that the justices will try to thread that needle because it likely fits their desired outcome -- let the well-known Republican off the hook, while nailing the Republican few people have ever heard of. Whether SCOTUS can legally reach such a result is another question.
Shonfeld provides background on Section 3, which mostly had been dormant since the Civil War -- until a rogue of Trump's magnitude came along to trigger its provisions:
One advocacy group mounted a challenge to Arizona Republican Reps. Paul Gosar and Andy Biggs’s 2022 candidacies, but a judge tossed the case. Another man’s challenge to Rep. Scott Perry’s (R-Pa.) 2024 candidacy is ongoing.
Trump, meanwhile, has faced dozens of lawsuits. Only two states — Colorado and Maine — kicked Trump off their Republican primary ballots, but even those decisions haven’t yet taken effect. Both are on hold pending the Supreme Court’s ruling.
Griffin, on the other hand, was already booted from office. In response to a challenge from three New Mexico voters, filed one day before Griffin was found guilty in his Jan. 6 criminal case, a judge disqualified him in September 2022.
The justices must now confront how to juggle the new case as they begin working on their potentially landmark opinion concerning Trump’s eligibility.
Griffin's attorneys raised all kinds of questions in an effort to get their client's conviction overturned. Will any of those arguments be enough to obtain the desired result? Griffin's case has been on a slow track, and time will tell if the high court is persuaded. Writes Shonfeld:
“[N]one of the trial court’s findings are sufficient to conclude that Mr. Griffin somehow engaged in ‘insurrection’ against the United States,” Griffin’s attorneys wrote in their appeal to the Supreme Court.
“At best, the trial court’s findings were sufficient to conclude that Mr. Griffin engaged in a riot intended to create a disturbance or a civil commotion.”
Notably, the Supreme Court during the recent arguments suggested an off ramp to keep Trump on the ballot that could leave open whether Griffin’s disqualification should stand.
Several justices suggested ruling that a singular state has no authority to disqualify candidates for president — or perhaps any federal office — under the 14th Amendment, which wouldn’t require the high court to opine on whether Jan. 6 was an insurrection.
Although that resolution would doom the challenges to Trump’s eligibility, it would leave open the question of whether states can use the 14th Amendment to disqualify state-level officials. Some justices seemed to make that distinction during the recent arguments, even as Trump’s lawyer asserted that those disqualifications, too, are invalid.
“Can states enforce the insurrection clause against their own officeholders, or can they enforce it against federal officials, or can they enforce it against the president? Those are all three different questions in my mind,” Justice Sonia Sotomayor said.Sotomayor told Trump’s attorney at another point, “There’s a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices, and you’re basically telling us that you want us to go two steps further. You want to — maybe three.”
Although Griffin appealed his disqualification to the Supreme Court well before Trump did, Griffin’s petition has proceeded at a slower pace, remaining pending for nearly a year. The justices are scheduled to discuss whether to take up Griffin’s appeal at their closed-door conference Friday (2/16/24).
Such conferences are conducted in private, and we have not yet found a document that indicates whether the high court has granted certiorari to hear the Griffin case.How might the justices handle the case? Shonfeld provides insights:
The justices could delay deciding whether to hear the case until after handing down the opinion on Trump’s disqualification, which could be just weeks away given that the court expedited the former president’s case.
But the parties on both sides in Griffin’s disqualification say the Supreme Court should move ahead now.
Beyond the overlapping issues, the parties have also sparred over a matter not at issue in Trump’s case: whether the Supreme Court has jurisdiction in the first place to review Griffin’s disqualification, given the posture of his case.
The plaintiffs, whose counsel of record also represents E. Jean Carroll in her sexual assault lawsuit against Trump, told the justices they have no power to hear the case. And even if they did, Griffin was correctly disqualified, they asserted.
“In sum, not only does this Court lack jurisdiction over the case, and not only does Petitioner fail to satisfy any of the standard criteria for certiorari, but the contentions that he advances are all meritless,” the plaintiffs’ attorneys wrote in court papers.
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