Nearly two years ago, an elected official from New Mexico was convicted on charges for his role in the attack on the US Capitol on January 6, then removed from office under a constitutional clause banning anyone who “engaged in insurrection” from holding office.
The case of Couy Griffin, a now-former Otero County commissioner, is in front of the US Supreme Court, just days after Donald Trump challenged a Colorado court’s decision that disqualified him from 2024 ballots under the same rule.
Justices are scheduled to consider Griffin’s case in a private conference on Friday.
How the justices ultimately decide whether that case moves forward, if at all, could signal their decision in the challenge facing Mr Trump.
Griffin, the founder of the pro-Trump group Cowboys for Trump, was convicted on misdemeanour charges for his role in the Capitol riots on 6 January 2021, when he was captured in video footage calling on then-Vice President Mike Pence to “do the right thing” and reject the 2020 election results that reflected the votes of millions of Americans.
He climbed a toppled fence and another barrier to reach the steps of the Capitol, where he called on the mob to pray.
On 6 September 2022, after a lawsuit and a bench trial in state court, a judge removed him from office, marking the first time in more than 100 years that a court disqualified a public official and the first time an elected official was removed from office for their role on January 6.
New Mexico Judge Francis Mathew noted the “irony” of Griffin’s attempts to defend his actions and urge the court against “applying the law” despite participating in an “insurrection” with a “mob whose goal, by his own admission, was to set aside the results of a free, fair and lawful election.”
Judge Mathew wrote that Griffin’s attempts “to sanitize his actions are without merit” and “amounted to nothing more than attempting to put lipstick on a pig.”
Griffin and his group spent “months normalizing the violence that may be necessary to keep President Trump in office” and urged supporters to travel to Washington DC to join what he compared to a “war” to keep the defeated president in office, the judge wrote.
The 14th Amendment was among a suite of civil rights amendments enacted in the volatile aftermath of the US Civil War. It was intended to grant equal protection under the law to all citizens, including formerly enslaved people, with a broadly written clause aimed at preventing Confederates from returning to a government they were in rebellion against.
Section 3 of the 14th Amendment holds that “no person” can hold any office, “civil or military, under the United States”, if they “engaged in insurrection or rebellion against the same”.
Judge Mathew ruled that a potential officeholder needs only to have taken an oath to uphold the Constitution, as Griffin did when he was elected as a county commissioner, and then broken it by engaging in an insurrection.
The authors of the amendment “did not understand an insurrection to require actual violence; intimidation by numbers sufficed,” he wrote. “The mob that arrived at the Capitol on January 6 was an assemblage of persons who engaged in violence, force, and intimidation by numbers.”
In his latest brief to the Supreme Court, an attorney for Griffin argued that he was “exercising his Constitutional rights to free speech and assembly” on January 6, and his removal from office violates the First Amendment.
“If the decision … is to stand, at least in New Mexico, it is now the crime of insurrection to gather people to pray together for the United States of America on the unmarked restricted grounds of the Capitol building,” according to the filing. “This Court cannot let this stand.”
He also argued that “the bar for engaging in an insurrection is not trespassing on government property.”
“If it were, any sit-in inside or outside of the Capitol could be considered an ‘insurrection,’” according to the filing.
The arguments mirror those supporting the former president, who was rendered ineligible to appear on 2024 ballots by Colorado’s Supreme Court last year.
But a majority of the justices on the nation’s highest court appeared to doubt the authority of individual states to disqualify federal candidates without permission from Congress.
Chief Justice John Roberts said granting states control over candidates for federal election would be “at war” with the Constitution and warned that a decision to disqualify Mr Trump could open up attempts to disqualify candidates “on the other side”.
“In very quick order I would expect … that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot,” he said. “And it will come down to a handful of states that will determine the presidential election.”
The justices will issue their decision in Trump v Anderson at a later date.
“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 Twitter.
Griffin, however, was not a federal officer.
In last week’s hearing, Supreme Court justices frequently turned the discussion to states enforcing federal offices under Section 3 of the 14th Amendment, which holds that “no person” can hold any office, “civil or military, under the United States”, if they “engaged in insurrection or rebellion against the same”.
But justices didn’t appear to have similar concerns about states enforcing that measure against state officials.
“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?” Justice Sonia Sotomayor asked last week. “Those are all three different questions in my mind.”
Griffin, meanwhile, has been relying on a crowdfunding website for his legal costs.
“I just figured that Trump, his people at the top, would look down to me… and help me through it,” he told The Daily Beast last month. “But I didn’t get any of that help when I went through my removal deal.”