Trial of Cowboys for Trump co-founder hinges on definition of Jan. 6 events

Aug. 17—What is the difference between insurrection and protest?

Expert witnesses for plaintiffs asking the court to remove and disqualify Otero County Commissioner Couy Griffin from office for his role in the Jan. 6 attack on the U.S. Capitol spent about six hours examining that distinction Tuesday, the second and final day of testimony in the case.

The main difference, according to constitutional scholar and University of Maryland professor Mark Graber, who testified at length, is the use of violence.

"An insurrection requires violence, force, intimidation," Graber said. "A First Amendment-protected protest has none of these."

Another difference, he said, is the breaking of laws.

"If, as Americans, our protests spill over into illegal actions," he said, "we are no longer in the realm of legal protest. We are in the realm of insurrection."

Graber's testimony, much of it focused on key definitions of insurrection and protest, highlighted the second day of Griffin's bench trial in Santa Fe. Plaintiffs' attorneys representing three men seeking to have Griffin removed from office showed dozens of video clips Tuesday — some taken by the Cowboys for Trump founder's videographer — aimed at illustrating how he fits the definition of an insurrectionist.

There were clips of Griffin using incendiary language in speeches along his way to Washington, D.C., in which he called for men to be ready to join the battle; clips of him scaling a concrete barrier at the Capitol; clips of him recounting the events to others afterwards, in which he admitted chanting "heave ho" in unison with people attempting to physically overcome a group of police officers.

In his cross-examination of Graber — and democracy and violence expert Rachel Kleinfeld — Griffin asked the experts to opine on myriad hypothetical scenarios and other people and groups, including Black Lives Matter and "antifa" — shorthand for anti-fascist left-wing groups.

Griffin's questioning often led to lengthy and circular exchanges with the witness, and expressions of frustration from Griffin when their answers weren't the ones he apparently intended to elicit.

"If punishment of insurrection was by death and you had the gavel in your hand you would not find me guilty of insurrection, or you would sentence me to death for insurrection?" Griffin asked Graber.

"I think that's an issue for you and counsel to argue, and for his honor to decide," Graber replied.

"That not my ... he's getting around my question," Griffin countered. "That's not my question. My question is ... if you were the final judge considering the evidence you've seen and my participation in that day ... by statements that I've made, would you sentence me to death for going to Washington, D.C., on January 6 and standing in that crowd as I did on that day?"

"If you're asking me ... would I convict you ... under 19th century standards, I would say yes, this is insurrection," Graber answered, referring to the era when the 14th Amendment to the U.S. Constitution was drafted.

Joseph Goldberg, representing the three Northern New Mexico plaintiffs, rested his case Tuesday.

But the trial is not over.

District Judge Francis Mathew said at the close of testimony Tuesday the parties should file written closing arguments and proposed finding of fact for his consideration by Aug. 29. He said would make a ruling within 10 days after he receives those documents.

The decision the parties would not make oral closing arguments seemed to come as a surprise to Griffin. It was an arrangement created in the early stages of the case, when he was represented by an attorney and had not yet decided to represent himself.

The confusion prompted Judge Mathew to offer the parties 15 minutes to make closing remarks.

The plaintiffs declined the invitation.

Griffin — convicted of trespassing during the Jan. 6 attack but acquitted of disorderly conduct — decided to speak.

"I've sat here today, and I don't know how many times I've been called an insurrectionist," he said. "That's a very heavy word that's thrown around very lightly because I'm not an insurrectionist. As God is my witness, on that day I only went to stand for my country, for my president and to support [then-Vice President] Mike Pence. ... All we wanted was just our voices heard. We had concerns about the election. ... We just want our electorate looked at, and that should not be a partisan issue.

"If really had the heart and the 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.

Griffin didn't present any evidence or witnesses in his defense and said Tuesday that may have been "foolish" on his part. He maintained he has faith in the court system and God.

Griffin — who only has four more months in office and has said he will not run for reelection — said in his closing remarks it would be a disservice to the people of Otero County for the court to remove him from office. He noted he was elected by the voters, who did not remove him from office during a recall election held after the Capitol riot.