Who Decides if January 6 Was an Insurrection Prohibiting the Election Of Participants?

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The Fourteenth Amendment prohibits anyone who has engaged in insurrection or rebellion against the United States after swearing an oath to support the Constitution from ever holding public office again. In light of this Disqualification Clause, some have called for participants in the riot that occurred on January 6, 2021 to be barred from future elections.

Who has the authority to enforce this provision, the states or Congress? Normally states cannot add requirements for holding public office, but is this different, or is enforcement left to Congress itself through its ability to expel members?

These questions took on new relevance on September 6, 2022, when New Mexico Judge Francis Mathew ordered that Otero County Commissioner Couy Griffin be removed from office effective immediately for his participation in the January 6 riot under the Disqualification Clause. While this decision is likely to be appealed, it could have serious implications for members of Congress and/or former President Donald J. Trump.

Watch a discussion on these important issues between James Bopp, Jr., who represented Congressman Madison Cawthorn against challenges to his office under the Disqualification Clause, and Pressly Millen, who represented the challengers to Congressman Cawthorn. That challenge was mooted after Congressman Cawthorn failed to win his primary, leaving the underlying questions unanswered. Joining Mr. Bopp and Mr. Millen will be Kory Langhofer, who successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge, and moderator Devin Watkins, an Attorney at the Competitive Enterprise Institute.

Featuring:

  • James Bopp, Jr., General Counsel, James Madison Center for Free Speech
  • Kory Langhofer, Managing Partner, Statecraft
  • Pressly M. Millen, Partner, Womble Bond Dickinson
  • Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.