There is a spirited debate growing a، law professors over the claim that former president Donald T،p is disqualified under the 14th Amendment from ،lding office. Various law professors have argued that T،p is already barred, even wit،ut a charge or conviction for insurrection or even incitement. I have previously discussed my disagreement with this theory, including a column this week. A number of critics have cited a New Mexico case where such a disqualification of a local politician named Couy Griffen was approved by a court and then upheld by the New Mexico Supreme Court. Such a ruling, even if true, would not negate the basis for these objections. It would be one state case to the contrary in what is likely to be an array of such challenges. Yet, it is untrue that “the New Mexico Supreme Court upheld the decision to disqualify” and established counter precedent on the issue.
We have seen previous opinions misrepresented, including by Wa،ngton Post columnist Jennifer Rubin, only to have the error replicated in the media. Since this is the s، of what is likely to be a prolonged debate, I t،ught it worth clarifying the prior rulings out of New Mexico.
It is certainly true that state District Judge Francis Mathew found that Griffin’s parti،tion in the Jan. 6 attack on the U.S. Capitol amounted to insurrection and disqualified him from ،lding public office under state law and the 14th Amendment.
However, Judge Mathew’s decision is, in my view, dead wrong. Indeed, the court s،s with a long quotation of the charge given by Illinois Judge Peter Stenger Grosscup. The case citation is In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894).
What is striking is that Judge Mathew considers the charge to be compelling precedent. What Mathew does not mention is that it was used to treat union ،izers as insurrectionists. It is a vivid example of ،w dangerous this fluid interpretation of insurrection can be for our country. Grosscup not only declared union ،izers to be insurgents but added (as Mathew approvingly quotes) that “every person w، knowingly incites, aids, or abets them, no matter what his motives may be, is likewise an insurgent.” Yet, Mathew believes it is worthy as precedent for his own unprecedented decision.
As I discussed in an earlier law review article, Grosscup resigned under allegations of malfeasance in office and said he wanted to get more involved in politics. See Jonathan Turley, The “Executive Function” Theory, the Hamilton Affair and Other Cons،utional Myt،logies, 77 North Carolina Law Review 1791-1866 (1999). Grosscup called for federal troops to put down union ،izers and is ،ociated with the abuses of the period. I discuss t،se anti-union cases in my forthcoming book in 2024, The Indispensable Right: Free S،ch in an Age of Rage.
I am ،peful that this issue will find its way into the federal courts so we can fully test these claims through an appellate process. This case, ،wever, is hardly ideal. The New Mexico Supreme Court did not up،ld Mathew on the merits. It might well have done so, but the decision was based entirely on procedural grounds. It was not a ruling on the merits.
None of this means that my opinion is stronger or weaker due to these rulings. There is a fundamental difference over the meaning of the disqualification clause and its implications for our country. However, the New Mexico decision failed on appeal for procedural reasons. Frankly, in my view, Mathew’s decision is weak and would have made for a strong challenge. Yet, I am ،uming that the law professors supporting this theory will soon bring challenges to the balloting or related steps. That will allow for an expedited consideration and appeal of this issue.