Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, this ruling in New Mexico disqualifying a County Commissioner from office as an insurrectionist under Section 3 of the 14th Amendment is pretty important.

It's the first case to interpret the Insurrection clause's application to J6. Let's read

https://twitter.com/adamgoldberg/status/1567191364219146240

Note: The Insurrection Clause bars people from office unless Congress "removes the disability". The Madison Cawthorn case from earlier this year addressed the interplay between that clause and the 1872 Amnesty Act, which removed the disability from civil war participants

Cawthorn argued that the Amnesty Act meant nobody who ever committed insurrection in the future could be barred from office either - and got a District Judge to sign off on that. The 4th Circuit went "LOL, no. Linear time, my friend"

That left open whether the clause would be applied to Cawthorn and J6. But sadly, he lost his primary and the question was mooted before it could be ruled on

So this is the first case to actually apply the Insurrection Clause to J6.

Let's see what the judge found. I'm going to skip the background on what Cowboy for Trump Couy Griffin actually did, and jump straight to the legal analysis

First we get the background on the Insurrection Clause. Note the dates of the cases he's citing.

Next, an extremely important point: this is a qualification for office, not a criminal statute, and there's no requirement that someone be criminally convicted for insurrection before it can apply

That sound you're hearing is Doug Mastriano's balls shriveling

Next we get the high-level summary of the Court's ruling. The finding that the J6 attack and its planning and incitement "were an 'insurrection' against the Constitution of the United States" is both obvious and enormously impactful.

I'm going to skip the part where the court explains that yes, Griffin took an oath and yes, his elected position is one subject to disqualification

OK. So what's an insurrection? Well, let's consult the original public meaning of the term - how the folks who chose it would have understood it.

This is what you call Gorsuch-proofing an opinion. (You'd call it Alito-proofing if you thought that was doable)

An "insurrection" did NOT have to be violent (it encompassed intimidation by numbers) and the participants could absolutely see themselves as acting for the good of the country; it's still an insurrection

Note, this has potential implications for other forms of protest, but there's a pretty easy dividing line between "we're here to let you know the people want something different" and "we're here to let you know we can physically harm you if you don't do what we want"

with the latter being demonstrated by repeated threats of violence and retribution even if it doesn't lead to actual violence

That said, I'd be lying if I said I wasn't troubled by the potential overbreadth of this reading

J6 was an insurrection by this definition

I can't overstate how important it is that this ruling includes planning, mobilization, and incitement for the "stop the steal" rally as insurrectionary behavior.

Seriously - someone explain to me how this ruling wouldn't apply to Mastriano?

Anyway, Judge Matthew really drives the nail home here: Yeah, this was an insurrection. Everyone knows it.

Last the court needs to decide if Griffin - who wasn't violent - "engaged in" insurrection.

Spoiler:

Bottom line: if you participate or aid in any way while knowing that the insurrectionists intend to use force, violence, or intimidation by numbers, you are "engaged in" insurrection yourself.

Again, this is a primer for anyone in Pennsylvania who wants to challenge Mastriano's eligibility for office

https://twitter.com/K2theSky/status/1395954173452107782?ref_src=twsrc%5Etfw

Though to be fair, Dougie didn't go THIS far, as far as I can tell

Anyway, that's the end of the important part of this decision, AFAICT.

It should have broader impact than just one county commish in New Mexico, and if someone isn't already drafting a petition in Pennsylvania, I don't know why not.

Oh, wait, no - there's a whole section on why there's no first amendment right to be a non-violent insurrectionist

For one thing, the 14th Amendment is part of the Constitution. It can't be unconstitutional.

Plus "no insurrectionists in office" is a pretty damn compelling state interest anyway

There's no First Amendment right to commit crimes by speech - again, in a less clear-cut case of "insurrection", I'd be concerned about how this could be applied