Copyright © 2022 Albuquerque Journal
SANTA FE — Hours after the attack started on the U.S. Capitol on Jan. 6, 2021, Otero County Commissioner Couy Griffin walked up a staircase to a platform outside the building, where thousands of Trump supporters had gathered in the restricted area.
“I love the smell of napalm in the morning,” Griffin said as he walked to the platform, quoting from the war movie “Apocalypse Now.”
The seemingly innocuous quote was one of dozens of things Griffin said or did in the days leading up to and after the Jan. 6 attack that Rachel Kleinfeld, a senior fellow at the Carnegie Endowment for International Peace and an expert in political violence and democracy called by the plaintiffs, used to conclude that Griffin was an insurrectionist, as opposed to a peaceful protester.
“It’s normalizing these violent groups as part of the political sphere,” she said on the witness stand. “That these militias and so forth, are part of normal political activities.”
Kleinfeld testified Tuesday on the final day of testimony in the civil trial against Griffin. The case, brought by three northern New Mexico residents, contends that Griffin, a Republican who founded the group Cowboys for Trump, violated a Civil War-era clause in the 14th Amendment that prohibits officeholders sworn to uphold the Constitution from engaging in an “insurrection” against the U.S. government. The suit seeks to remove Griffin from holding elected office.
Part of the basis for the lawsuit was that Griffin was convicted earlier this year on a misdemeanor charge in federal court for entering a restricted area during the Jan. 6 attack on the U.S. Capitol, which Griffin attended. Griffin said he was only at the Capitol as a peaceful protester and had no part in the violent attack.
Both Griffin, who is representing himself, and the plaintiffs, who are represented by a team of high-powered attorneys from across the country, closed their cases. Both sides have until Aug. 29 to submit written closing arguments to 1st Judicial District Judge Francis Mathew, who is presiding over the case.
Mathew said he will announce a verdict within 10 days of that deadline.
The plaintiffs called five witnesses over the course of the two-day trial. Griffin called none.
“Witnesses?” Griffin chuckled when the Journal asked during a break in the trial if he planned on calling any. “I don’t even have a lawyer.”
Much of the case against Griffin was based on recordings of himself that were made and published to his social media sites in the days before and after a mob of Trump supporters descended on the Capitol in an attempt to disrupt the certification of the 2020 election, which former President Trump lost to President Biden.
The southern New Mexico elected official went on a bus tour across the country in the days leading up to the attack, where he urged Trump supporters to rally around the Capitol on Jan. 6. He was a vocal activist during the attack and he continued to speak favorably of the riot in the days after the attack in videos that were posted to social media.
Kleinfeld said that Griffin in those public statements consistently used tactics that can incite people to become violent.
He framed the violence in the context of it being a battle or war, during which violence is sanctioned; he said that such violent actions would be in self-defense; and he dehumanized the other side, in this case Democrats and “RINO” Republicans, by calling them wicked, vile and corrupt, she said.
Kleinfeld cited the fact that Griffin frequently appeared at speaking events with militia groups, such as the New Mexico Civil Guard, which normalized the groups as being a routine part of political discourse.
“Any speaker has to make decisions about the company one keeps,” she said.
Griffin asked her under cross-examination if she thought he was a violent man, and she said no.
“You participated by mobilizing a mob, by speaking aggressively …, by normalizing violence and rallying a crowd after they already had been violent,” she said in response. “Yeah, that’s my opinion, that you are an insurrectionist.”
Mark Graber, a professor at the University of Maryland School of Law, also testified for the plaintiffs on Tuesday. He said that Griffin’s actions in the days leading up to and after the Capitol attack met the standards for participating in an insurrection.
Graber said there are four elements of an insurrection. It requires a group of people to assemble, they have to have a goal of preventing the execution of a law, they have to be acting on behalf of the public and not just themselves and they have to use violence, force or intimidation.
Graber said the Jan. 6, 2021, attack on the Capitol qualifies as an insurrection.
It doesn’t matter what the motive of the group, he said. For example, prior to the Civil War people who attempted to free Black slaves were accused of insurrection, he said.
To support those conclusions, Graber added context as the plaintiff’s attorneys played videos of the attack on the Capitol and Griffin’s videos posted to social media.
Some of the clips showed protesters smashing windows and assaulting police officers. There were also recordings of the mob shouting “Hang Mike Pence” and repeatedly shouting “Nancy” together as they marched toward Speaker of the House Nancy Pelosi’s office. There was a noose near the Capitol on Jan. 6.
“In treason, there are no accessories,” Graber said. “Everybody that is involved in an insurrection is a principal actor.”
Under cross-examination, Griffin asked Graber if it was possible for people to meet the standards of an insurrection while protesting abortion laws outside of a Supreme Court justice’s house.
“It is entirely possible any protest could become an insurrection under the right” circumstances, Graber said.
Though the official closing arguments will be made in court filings due by the end of the month, Mathew allowed each side to make a 15-minute closing argument.
Attorneys for the plaintiffs elected to pass on an oral argument and submit their closing in writing.
Griffin made a closing. And the fire-brand commissioner said his bluntness is evidence he didn’t intend to cause violence or overthrow the government.
“If I really had a heart and an intent to cause violence, believe me I would have blurted it out and there would be factual evidence to pin me to the wall,” he said during his closing.
Though there were videos on social media where Griffin said “the only good Democrat is a dead Democrat” and other inflammatory remarks, he said he was only referring to beating Democrats politically.
Griffin also apologized for some of his comments that were played in video throughout the course of the trial, as well as for his behavior during the trial. He repeatedly had to be told to ask questions and not make statements when he was cross-examining witnesses.
“I’m not necessarily proud of some of the things I’ve said,” he said. “They were driven by emotion. Sometimes in the world of politics you get caught up in emotion.”
Griffin wore his trademark Cowboys for Trump collared shirt during the final day of his trial as did his father, who watched the entire trial. He didn’t wear his typical cowboy hat in the courtroom, but he plopped it back on as he left the courthouse.
“The people of Otero County have seen all of this,” Griffin said during his closing. “And I can guarantee you there’s a lot of them that don’t agree, but there’s a majority that do agree. … For your honor to rule in the plaintiffs’ favor would be directly subverting the will of the people of Otero County.”