Walt Shaub: This podcast is sponsored by the Project On Government Oversight, POGO, a nonpartisan, independent government watchdog.

Voices from January 6th:

Patriots, start taking down names and kicking ass.

[Inaudible 00:00:15].

He circles. Breach the line.

We’re going to walk down to the Capitol.

Stop at the Capitol.

You’ll never take back our country with weakness.

We’re going to fight.

We need to hold the doors of the Capitol.

The fight begins today.

Virginia Heffernan: Welcome to The Continuous Action. I’m Virginia Heffernan.

Walt Shaub: And I’m Walt Shaub. That clip you heard at the beginning was cacophony from the January 6th insurrection at the Capitol, and there’s a reason we played that.

Virginia Heffernan: Today we’re talking about a provision in the US Constitution that bans insurrectionists from holding public office. This is the “Banned from Office” episode. Insurrectionists, it seems, are maybe just constitutionally NSFW. Walt, let’s start by telling them what the Constitution says.

Walt Shaub: The provision we’ll look at is Section 3 of the 14th Amendment. That section prohibits individuals from serving in public office if they engaged in an insurrection or rebellion against the United States at any time after they were serving as government officials who took an oath of office to support the Constitution. It applies even if they’re no longer in that position, but at some point took the oath. The ban also applies to any of those same individuals if they gave aid or comfort to enemies of the United States.

Virginia Heffernan: So, if the ban’s going to apply, the person has to have taken the oath to defend and support the Constitution at some point before they rebelled or insurrected.

Walt Shaub: That’s exactly right. You have to have been in a position of governmental authority in which you swore to support the Constitution at some point before you engaged in the conduct.

Virginia Heffernan: Wait, okay, so you mean like, say, a president?

Walt Shaub: Oh, well —

Virginia Heffernan: I know; I’m going off the ledge already.

Walt Shaub: I know. Could you imagine a president doing that? Yes, but that’s right. There are some presidential power enthusiasts who question whether a president is included, but the weight of legal scholarship’s on the side of those who say the disqualification clause of the 14th Amendment covers the president.

Virginia Heffernan: I mean, shouldn’t the president be held to a higher standard? Okay, forget it. I’m not going to go off that ledge right now, Walt. It’s not 2020. We’re moving forward.

So, this banning from office business, that’s just not the stuff of theory, right? Just last fall, a state court in New Mexico removed a man named Couy Griffin, C-O-U-Y, from the position of Otero County commissioner. So, a law in Otero County requires commissioners to swear to uphold the U.S. Constitution. Griffin, who founded something called Cowboys for Trump, participated in the January 6th attack on the Capitol. So, the judge found that the elements of the disqualification clause were met, and he is banned from holding public office for life.

Walt Shaub: This is an important ruling. It was the first case seeking to disqualify a public office holder under the 14th Amendment based specifically on the Capitol insurrection.

Virginia Heffernan: What’s also interesting is in his decision, the judge talked about the so-called Stop the Steal movement, and he wrote, “Participants in these efforts planned to use mob intimidation and violence to stop the transfer of presidential power.” And the judge also made a factual finding that Griffin illegally breached security barriers surrounding the Capitol complex on the Capitol’s west front grounds. Pretty charming guy, this Couy Griffin.

Walt Shaub: This is a guy who has no business holding public office, but the case was important beyond him because this was a test case. There isn’t a ton of history on enforcement. There’s some, but not a ton. And this case puts enforcement of the 14th Amendment’s disqualification clause in a modern context, right? The disqualification clause hadn’t been enforced in over a hundred years. So, Griffin’s disqualification shows that this part of the 14th Amendment is still viable.

Virginia Heffernan: One thing that stood out for me was that the Griffin case was a civil lawsuit brought by ordinary citizens.

Walt Shaub: Exactly. A coalition of advocacy groups volunteered to represent three New Mexico residents in challenging Griffin’s qualification for public office.

Virginia Heffernan: And we’ve got some actual momentum now too. The New Mexico district judge Francis Matthew, who ruled in the Couy Griffin case last September, he found that the Capitol attack was in fact an insurrection. We say this all the time and we all speculate about the consequences of January 6th, but here’s a — granted, a state district judge — but a judge writing this into the record. He even said that the riot not only included the mob violence, but the quote “surrounding, planning, mobilization, and incitement that led to it.” I mean, damn. And then the New Mexico Supreme Court dismissed Griffin’s appeal. So Judge Francis Matthew’s words are going to stay on the books.

Walt Shaub: That’s right. This case is going to stay on the books. It’s not binding on courts in other states, or on higher courts in New Mexico, or on federal courts. But we now have a judge going on record with a holding saying that this was in fact an insurrection, and that all the work leading up to the insurrection was part of it. That’s a really important example of what could well happen in other cases. It’s important to Couy Griffin too. After losing the case, he went and disrupted a county commission hearing, calling the woman who replaced him on the commission “a disgrace and a loser.”

Virginia Heffernan: I mean, he’s sort of a mini, one-man, improv insurrection. He’s such a sweetheart, that guy. But let’s get back to the real insurrection, on January 6th. What about, Walt, dare I ask, Donald Trump?

Walt Shaub: So that’s the big question. What about Trump, indeed? We’re going to hear from two experts today. The first is POGO’s own Liz Hempowicz. She’s led a research project into mechanisms for enforcing the 14th Amendment across the country. And the second one is Donald Sherman. He serves as senior vice president and chief counsel for Citizens for Responsibility and Ethics in Washington, also known as CREW.

Virginia Heffernan: CREW was one of the groups that represented the new Mexican plaintiffs in the Couy Griffin disqualification.

Walt Shaub: Here’s Liz Hempowicz. We’ll start with her.

Liz Hempowicz: So, the Constitution’s disqualification clause exists to keep individuals who have taken a prior oath of office and then go on to engage in insurrection or rebellion against the United States or give aid and comfort to enemies of the United States from holding public office again in the future, unless a supermajority of Congress votes to cure them of that disqualification. So it’s not completely permanent in the sense that it can never be removed, but in general it is very difficult to remove that disqualification. So it exists essentially to keep those individuals outside of positions of power in our government again in the future.

Walt Shaub: In addition to their having to have been an insurrection, someone has to have, quote, “engaged in the insurrection.” So, what does it mean to “engage” in that? Can words be enough or do you, for instance, have to be one of the people who crashed through the barrier to the Capitol?

Liz Hempowicz: Yeah, so “engaged” historically has meant that there’s a voluntary effort, that you are not conscripted into this kind of service, that you voluntarily aid in an insurrection or rebellion. There’s a broad swath of activity that can be considered “engaging in insurrection or rebellion.” And to your specific question about words, historically, yes. And I think before you ask me about the First Amendment, keep in mind that speech intended to incite illegal action or speech in furtherance of a conspiracy already does not enjoy First Amendment protection. So, when we talk about speech aiding in or fomenting and insurrection, it fits within those already well-established First Amendment boundaries. But that’s one of those particular places where enforcement is going to be really case-specific because it’s not just any word or any type of words that can count as “engaging.” And so, this is just one of those places where enforcement is going to be incredibly case-specific.

Walt Shaub: Does the disqualification clause cover the president?

Liz Hempowicz: There’s some disagreement on that question, but I would say both the historical record and common sense supports that it does. So, the historical record, members who ratified the amendment in the wake of the Civil War used the presidency as an example on the floor when they were debating the amendment. So that, to me, is pretty clear. And then common sense, it is really unlikely that the Congress would have voted to add a constitutional amendment like this one and be totally okay with individuals serving in the highest, highest form of office in our country, but not as elected officials in the Congress or as judges or in the military or in state public office.

Walt Shaub: I also talked to Liz Hempowicz about the mechanism for enforcing the 14th Amendment’s disqualification clause. The answer was a little complex, because there are a variety of ways to enforce the disqualification, and the rules vary from state to state. But Liz was quick to emphasize that the means to do this already exist. That’s important, she says, because some people have tried to argue that we need Congress to enact a federal statute. Not so, says Liz. There’s no need for federal legislation to make the 14th Amendment enforceable, as we’ll hear from our next guest. One of those ways can include a lawsuit filed at the state level by ordinary Americans.

Virginia Heffernan: Okay, Walt. So that’s a brilliant analysis of the disqualification clause. Let’s hear from CREW’s Donald Sherman about the litigation.

Walt Shaub: Donald, you had a big win in New Mexico. There was a case involving a former Otero County commissioner named Couy Griffin, and he was disqualified under the 14th Amendment from holding public office. Can you tell us a little bit about that case?

Donald Sherman: Sure. Couy Griffin is the founder of an organization called Cowboys for Trump, and a former Otero County Commissioner in New Mexico. And he is one of a number of leaders across the country who helped sort of provide the groundwork for the Stop the Steal movement and some of the more extremist movements that threatened political violence in states across the country and manifested in the attack on the Capitol on January 6th. He had, through his work with Cowboys for Trump, visited Trump in the Oval Office. And then on January 6th, he breached police barriers and was seen on the Capitol grounds rallying the crowd as other insurrectionists stormed the building. So, we represented three New Mexico residents in a case to remove Mr. Griffin from office, based on the argument that he was disqualified because of his participation in the insurrection. And through discovery, what we found was that he recorded lots of videos, including videos of his speeches on the Women for America First tour, which led him from New Mexico to DC where he openly recruited people to come to DC and to come to the Capitol.

One of the things that was made clear in his speeches was that he was not just recruiting people for a violent rally, but he was fully invested in and aware that violence was expected. At one stop outside of Atlanta, he said, “I want people to come to DC, but I want specifically for men to come to DC because when you are in a fight, you want to be standing shoulder to shoulder with men.” And then as he has in other instances, he said, “Oh, well,” he tried to sort of qualify and say that, “Well, I don’t mean that women aren’t invited, but when you’re preparing for a battle, you want to be next to men.”

And that was part of the evidence that we presented in court to demonstrate to Judge Matthew that Couy Griffin was not talking about a theoretical fight. He wasn’t talking about a fight for civil rights as language that we see often in the context of even political disobedience for social justice causes. This wasn’t a euphemism, there was no subtlety, there was no wink and a nod. If anything, he seemed to want to make clear that this wasn’t a wink and a nod, and that he wanted people to come there to fight. And we presented other evidence demonstrating that he was not only aware of and supportive of the violence, but that he was actively facilitating it

Another good example is Officer Danny Hodges is being awarded the Presidential Citizenship Medal for his role in defending the Capitol. He was being crushed in the tunnel to the Capitol. And in the video, which most people who’ve heard or seen or heard anything about January 6th have seen, you can hear the crowd chanting, “heave ho, heave ho,” as they try and coordinate their push to break through the doors and to crush Danny and other officers to move into the Capitol. And so, one of the videos that we were able to get in discovery was a recording of Mr. Griffin the day after the attack on the Capitol where he is talking to a reporter and he’s bragging. “Yeah, you know, I could see the skirmish that was happening in the tunnel, and everybody was chanting heave ho, heave ho.” And he laughs about it.

And so, there was a body of evidence that we were able to demonstrate that this wasn’t someone who just showed up for a protest. This wasn’t someone who just kind of got caught up and didn’t know what was going on. This was someone who before, during, and after, not just actively participated in a violent effort to overthrow the government but was actively supporting it through his efforts.

Walt Shaub: So, Donald, one of the things you had to convince the judge of was that this was an insurrection on January 6th, and you succeeded. You persuaded at least this judge. That’s a pretty important finding.

Donald Sherman: Yeah. Obviously, it’s a not just important, but a necessary finding. I think it’s an interesting thing, because ever since the attack on the Capitol, people, Republicans, Democrats, even Donald Trump’s lawyers have referred to it as an insurrection, right? There actually hasn’t been too much of an argument or quibbling about what this was. I think the question was whether that usage and more importantly, the attack on the Capitol and the events surrounding it, leading up to it, constituted an insurrection as the drafters of Section 3 of the 14th Amendment would’ve understood it.

And so, we did a ton of legal research, looking at cases, looking at legislative history. And some of the historical references for events that were called Insurrections at the time included the Whiskey Rebellion, where there were violent protests against a tax on whiskey. Aaron Burr’s attempt to through violence overthrow the enforcement of federal laws. And so there were a number of... Shay’s Rebellion.

There were a number of examples, historical examples before the Civil War and before Section 3 of the 14th Amendment that provided clarity that insurrection was not limited to Civil War, and specifically that insurrection was — and this is the definition that we presented at trial and that was in Judge Matthew’s decision — which is that insurrection includes an assemblage of persons acting to prevent the execution of one or more federal laws for a public purpose. Meaning that they weren’t doing this for their own personal interest; they’re doing it for a larger goal and through the use of violence, force or intimidation by numbers.

And quite obviously, looking at what occurred in the weeks leading up to and culminating in the attack on the Capitol, there was an insurrection. There were thousands of people, they were acting to prevent the transfer of power, to prevent the enforcement of the laws that facilitate the peaceful transfer of power.

They believed that they were righteous in their cause and that it was for a public purpose, and they used violence and force to do so. One of the things that we got from our fact witnesses, including Officer Hodges, was that the crowd itself was a weapon. They could not arrest people, they could not remove people because everyone was a threat, and the sheer numbers of the crowd made it impossible for them to do that. And as everyone saw, it took many, many hours and lots of law enforcement to ultimately clear the Capitol grounds. And as Couy Griffin confirmed with his “heave ho” video, the crowd was literally used as a battering ram, as a weapon to get into the Capitol and putting the lives of members of Congress, their staff, other folks working in the Capitol, and the vice president of the United States in danger.

Walt Shaub: And now Couy Griffin is not a county commissioner, thanks to you. He has been removed from office. It strikes me Couy Griffin isn’t the only one on that day and leading up to that day who was trying to foment an insurrection. What about Donald Trump? Do you think he is disqualified or should be disqualified from holding office under the 14th Amendment?

Donald Sherman: He’s absolutely disqualified. Frankly, I think through the diligent work in the January 6th committee and just the voluminous public record, the only person that there might be a better case for removal than Couy Griffin is Donald Trump, just because of all of the evidence that is already out there in the world we’re able to demonstrate to Judge Matthew. And I think the public commonly understands what happened on January 6th as an insurrection. And it is obvious from Donald Trump’s actions, whether that be growing tolerance and encouragement of political violence at his events up to and leading and into the rally on the Capitol or his encouragement of people to come and telling them that it will be wild.

As Couy Griffin said in videos before, during, and after the insurrection, and then once he was facing legal challenges, he was there because Donald Trump asked him. He was not there for any other purpose. He was there because the president asked. And that has been a common refrain of people who were there on January 6th and engaged in violence again before, during, and after the attack on the Capitol. This is not just sort of a post-hoc defense of their conduct. In fact, at least for Couy Griffin, it was part of the affirmative pitch to get other people to come and to be there to threaten Mike Pence to quote-unquote “do the right thing” and overturn the election and to storm the Capitol. As everyone knows by now, they were there because he called them, and they left when he said to go home.

And I think there’s other facts there. Not just his incitement of the insurrection, including his remarks on the mall about not having a country anymore if you fight, and his claim that proved to be false, whether he thought it in real time or not, that he was going to join them at the Capitol, but also his failure to act when it was obvious that the Capitol had been breached and that people’s lives, including the vice president, were in danger. That has also been well documented by the January 6th committee. And I think all of those facts and other underlying facts that are now in the public forum make quite clear that Donald Trump engaged in insurrection consistent with Section 3 of the 14th Amendment, and he obviously took an oath to defend the Constitution when he was inaugurated, and so he is disqualified from office.

Virginia Heffernan: Yeah, it’s going to be interesting to see how all this plays out with former president redacted. Walt, I can’t say his name today. I’m glad the Griffin case in New Mexico helped pave the way.

Walt Shaub: We also have the January 6th committee’s report.

Virginia Heffernan: They did so much to develop the evidence here and package up a record of Trump’s culpability, and then they went further and laid out exactly how the evidence lines up with the requirements of the 14th Amendment’s disqualification clause.

Walt Shaub: That was actually one of the recommendations POGO made to the January 6^th committee. The report Liz Hempowicz and her team drafted emphasized the need to do that. And I think, given all the evidence, the case for Trump’s disqualification is strong. I truly don’t see how you come to any other conclusion than that he has disqualified himself from public office.

Virginia Heffernan: I got to say, Walt, you are generally a very even-handed person and never rush to judgment so I’m taking you very seriously there, and I think listeners should too. I am nervous, for my part, about what this Supreme Court will do, but let’s not get into that. Look, the top note news today is that the Constitution does have a penalty for insurrectionists, as it should, and the law, if enforced fairly, should not be letting the January 6th culprits skate. So take a look, listeners, at the two immensely interesting reports we will put in the show notes. I think you’ll get a lot out of them.

That’s it for this week’s episode of The Continuous Action.

Walt Shaub: The Continuous Action is hosted by Virginia Heffernan and me, Walt Shaub. It’s produced by Myron Kaplan, and as always, sponsored by the Project on Government Oversight, POGO.