Day two of the trail to remove Cowboys for Trump Founder and Otero County New Mexico Commissioner Couy Griffin from office proceeded today into a second day of expert testimony on why he qualifies for removal as per Section 3 of the 14th amendment and participation in a rebellion or insurrection against the government of the United States and the peaceful transition of power of the presidency.
Text of the amendment:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Interpretation is that no person can be a Senator, Representative, Elector or officer of the United States — or United States military officer, or member of a State Legislature, or a Governor, or a judge of any State — if they took an oath to support the Constitution and then took part in a rebellion against the United States or gave aid and comfort to the enemies of the United States. But Congress can change this with two thirds vote.
A History Lesson of how Republicans enacted the 14th Amendment Section 3:
This is a section of the constitution that dealt directly with the aftermath of the Civil War, section 3 of the 14th Amendment prohibits those who had “engaged in insurrection or rebellion against the same [United States] or given aid or comfort to the enemies thereof” from serving in the government. It was designed to keep the governments free of those who had broken the country apart. However, its effect wound up being relatively minor, that is until this trial.
Due to the obscure cases around the use of this amendment this may make an interesting case that could go all the way to the US Supreme Court as a precedent setting case.
Section 3 of the 14th amendment has been called “the most forgotten provision of the forgotten Fourteenth Amendment.” Congress last used Section 3 of the Fourteenth Amendment in 1919 to refuse to seat a socialist Congressman accused of having given aid and comfort to Germany during the First World War, irrespective of the Amnesty Act.
Interesting fact is the amendment was drafted by Republican members of the Thirty-Ninth Congress.
Republicans when setting out the conditions for restoring former confederate states to the Union demanded, in rough order of priority, a constitutional change in the basis of apportionment (Section 2), constitutional provisions respecting the state and federal debt (Section 4), constitutional or statutory provisions limiting confederate participation in politics (Section 3), constitutional or statutory provisions protecting the rights of former slaves and white Unionists (Section 1), and a constitutional ban on secession that did not become part of the final Fourteenth Amendment.
The first version of Section 3 was born in chaos. On Wednesday, April 25, 1866, the Joint Committee on Reconstruction reached agreement on an omnibus Fourteenth Amendment. The centerpiece of that text was the provision mandating black suffrage by 1876. The Republicans on that committee immediately learned from their peers that this provision would not fly. Desperate to produce an amendment by Monday, April 30 the Joint Committee hastily cobbled together a new omnibus draft on Saturday, April 28. The centerpiece of that text was Section 2, which the Republican members of the committee thought would induce former confederate states to accept black suffrage by reducing state representation in the House of Representatives and Electoral College in proportion to disenfranchised males over 21. Section 2 of the new omnibus text could not be implemented until after the next census. To ensure loyal control of state governments until that time, the Joint Committee added Section 3, which disenfranchised until July 4, 1870, all persons who gave “aid and comfort” to the rebellion.
The second version of Section 3 was reared in secret. The Joint Committee’s Section 3 engendered substantial debate among Republicans in Congress. Republicans disputed how that provision would be implemented and whether that provision would be effective. In mid-May Republican Senators held a three-day caucus to resolve disputes over Section 3 (and Section 2). We know the subjects of that caucus (largely Section 3), but not the details of what was said. No one leaked then or later in memoirs.
When that caucus ended, Senator Jacob Howard of Michigan proposed, with a few tweaks, the Section 3 we have today.
That Section 3 replaced temporary disenfranchisement with a permanent officeholding ban (both federal and state) while limiting the subjects of the ban to persons who, holding certain offices, had previously taken an oath to support the Constitution. Republicans fell in line immediately. Party members responded to Democratic criticisms but did not discuss the meaning of the Republican Senate Caucus’s Section 3 or how to best implement that provision.
Republicans assumed the constitutional problems the Fourteenth Amendment was meant to solve would largely vanish once either white Unionists or a biracial coalition of white Unionists and former slaves controlled southern governments and sent loyal representatives to Congress. Section 3 would, of course, apply to any future insurrection. Nevertheless, Republicans were focused almost exclusively on preventing confederates from regaining power. They did not concern themselves with what might constitute a future insurrection once the slave power had been permanently interred.
Yet here we are today…
Yet here we are today, in a court case that’s roots are spun from the American Civil War, in a battle to define what is an act of rebellion or insurrection and to answer the question of should a local county commissioner from a small poor county in New Mexico be removed from office for participation in what most have defined as an act of rebellion against the transition of power from former President Trump to President Biden.
Should Couy Griffin, an Otero County Commissioner be removed from office and barred from ever holding office again per article 14 Section 3?
The plaintiffs today, called law professor and expert on the 14th amendment, Dr. Mark Graber, to the stand to outline the definition of treason and an insurrection under the amendment, and how Griffin’s actions play into that.
Griffin: In your own opinion, is that a violation of my oath?
Dr. Graber: “Yes. Again, let’s go through the elements. You were acting in concert with other people, you marched with them, that’s what the tapes clearly show. You had a purpose, to prevent the certification of Joe Biden to be president.”
Dr. Graber investigated the insurrection and Griffin’s role in it. Under oath, he shared his three big findings: January 6, 2021 was an insurrection, people responsible for writing Section Three of the 14th amendment back in the 1800s would say it applies to county commissioners, and that they would view Griffin’s actions on July 6th as participating in insurrection.
Griffin, who is representing himself, argued he went to Washington D.C. that day as a private citizen and not in an official capacity.
Like Monday, Judge Francis Mathew had to step in to keep proceedings on track.
Griffin: Your honor…the witness doesn’t need to be trying to put what I was thinking and what I was doing, this is my time with the witness and what I was doing there.
Judge Mathew: He’s answering your question.
Griffin: He’s making accusations all the same.
Next on the stand was Dr. Rachel Kleinfeld, an expert on political violence who also helped the select House committee investigate the insurrection. She testified that Griffin was an insurrectionist.
In cross-examination, Griffin said that was her opinion.
Toward the end of the day the dialog would make Griffin appear defeated. He mentioned maybe he should have had witnesses for his side. In the end the judge will decide. Today marked the end of testimony. Hundreds of pages of expert witness findings and cross examination that were humorous at time considering the seriousness of the charges and the potential precedent of this trial.
The closing arguments are not verbal but are to be submitted to the judge by August 29th. The judge is said he will rule within 10 days of receipt of those closing arguments.
Prologue:
The most bizarre twist of this whole affair is that an alleged staunch Republican, Commissioner Couy Griffin, has the potential of being removed from office, by an obscure piece of the constitution, that dates back to the civil war, sponsored by Republicans, to protect the United States Government from Confederate leaning elected officials from serving in office.
The joke on us, in poor, played, Otero County, New Mexico is that the average Joe American is footing much expense with this whole judicial affair; it is game of brinksmanship on constitutional theory, that could impact the lowest to highest levels of power in this nation.
Mr. Griffin and those that filed the lawsuit are all pawns in a game of constitutional theory being played out in what could evolve into a big-league US Supreme Court, precedent setting case that could impact the political landscape of this nation for decades at every level – city, county, state and national.
This case getting national attention and being defended by a lone commissioner without an attorney is the big leagues, playing the little guy, into shaping the Republican Party to Retake Republicanism or to allow it to continue its present course, thus allowing an evolution, of power to fill the vacuum of discontent in a way we nor our founding fathers ever would have imagined.
Some say pray for America, others say Retake Republicanism, I suggest being diligent, vote, participate and educate oneself with constitutional facts verses the false narratives, get back to civics education, actually read and understand the constitution, then diligently look at those elected and ask yourself, “does he or she actually represent the values and intent of the founding fathers and that of the constitution for which we are all sworn?”
Let’s put ego aside and reengage in the art of compromise and citizenship and respect for one another.
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Chris Edwards Author, Mentor/Executive Coach & Political Consultant 