PHOENIX — Attorneys for candidates for office are asking judges to throw out complaints that they can’t legally run based on contentions they are guilty of insurrection for their role in the Jan. 6 riot at the U.S. Capitol.
Jack Wilenchik who represents state Rep. Mark Finchem and Kory Langhofer who is the attorney for Congressman Andy Biggs say there is no basis for the claims by Free Speech for People that their clients are constitutionally barred from office. And Exhibit No. 1, they say, is that neither of them actually has been convicted of anything, much less charged with a crime.
“We don’t allow random members of the public to accuse politicians of a crime and remove them from office,” Wilenchik told Capitol Media Services. “If we did, then, Lord knows, the courts would be full of this kind of thing every day.”
He said that’s why mere allegations against everyone from Donald Trump to Hillary Clinton can’t be used in things like election challenges to bar them from running for office.
“If the courts were to even attempt to hold such a proceeding, then it would not only encourage countless more cases in which political candidates claim their opponent is unfit to hold office due to commission of a crime, but the trial would also fail to satisfy basic constitutional guarantees of due process in criminal cases,” Wilenchik said.
But the outcome of the lawsuits — and the 2022 candidacies of Finchem, Biggs and Congressman Paul Gosar — could turn on finer legal arguments of what the Fourteenth Amendment actually means.
At issue is a provision of the 1868 amendment, approved in the wake of the Civil War, that says anyone who “engaged in insurrection or rebellion” is precluded from holding any office in federal or state government. Free Speech for People, a national organization involved in election issues, contends the alleged activities of all three in planning what happened on Jan 6. meets that definition.
And in the case of Finchem, who now is running for secretary of state, he actually was at the Capitol, though he said he never went inside.
Langhofer said the legal arguments presented by challengers are a stretch, at best.
“Even if we assume all the facts they said are true, it wouldn’t constitute insurrection,” he said.
“‘Insurrection’ has a particular meaning,” Langhofer said. And he said it’s more than doing “mean things.”
The bigger legal question is whether, even assuming the definition fits, any of that can be used in a state court action to knock a candidate off the ballot.
“To date, Congress has enacted no legislation that would provide a state court with the authority to determine that a person is barred from holding public office under the Disqualification Clause (of the Fourteenth Amendment), especially in an expedited civil proceeding such as this,” Wilenchik wrote in his pleadings.
“To the contrary, Congress has seen fit to address the penalties for engaging in violent rebellion only though criminal statutes, which provide that such persons — following a proper indictment, trial, conviction, and entry of judgment, of course — ‘shall be incapable of holding any office under the United States,’” he continued.
Langhofer said the lawsuits are even more problematic when trying to keep someone from running for Congress.
“Only Congress can judge the qualifications of its members,” he said. “And whether you are an ‘insurrectionist’ is, in fact, a qualification for membership.”
And there’s something else.
Langhofer pointed out that all three of the defendants are not just candidates but have, in fact, been holding office for years.
“They knew more than a year ago who was running,” Langhofer said of the challengers.
He pointed out the Fourteenth Amendment not only precludes someone from seeking office but also from holding office in the first place. Yet Langhofer said those who filed suit didn’t challenge their ability to be in office now but instead waited until after the April 4 filing deadline for candidates for the 2022 election to file suit — and only to keep them off the ballot.
And that last-minute maneuver, Langhofer said, doesn’t provide the time for a proper trial.
It’s also a violation of a legal concept known as “laches,” where courts can throw out claims where plaintiffs knew about the facts but waited to file suit.
“We all have to scramble,” he said.
“We’re not going to be able to bring in witnesses, do discovery, things like that,” Langhofer said. “You can’t bring a major constitutional case at the very last minute.”
Hearings were originally scheduled to begin later this week but have been delayed.
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