(CN) — An attorney for the group Cowboys for Trump asked a 10th Circuit panel Friday to revive a lawsuit against New Mexico over political donor disclosure requirements.
Otero County Commissioner Couy Griffin registered Cowboys for Trump as a limited liability corporation so he could collect donations as he advocated for then-president Donald Trump’s policies including the border wall and abortion protections. New Mexico Secretary of State Maggie Toulouse Oliver ordered Cowboys for Trump to register as a political action committee or face a fine.
Cowboys for Trump sued New Mexico in June 2020 challenging state reporting, disclosure, and disclaimer provisions in the New Mexico Campaign Reporting Act.
When Cowboys for Trump disclosed to the court it had no intention of making independent expenditures — which would have triggered a key portion of the disclosure requirement — the judge dismissed the case for lack of standing. Griffin appealed.
While the court focused on state disclosure requirements based on independent expenditures, Cowboys for Trump attorney Sidney Powell on Friday zoomed out, questioning why the organization was even designated a political action committee.
“I think the fact that the registration requirement is imposed on an LLC that simply provides costs for a man to ride his horse across the country carrying a flag is an amazing burden to impose,” Powell told the three-judge 10th Circuit panel.
Finding the organization’s injuries apparent, Chief U.S. Circuit Judge Timothy Tymkovich wondered why the case was before the panel.
“Clearly you have injuries, why didn’t you just enter your injuries and move forward with your complaint, rather than come up here with a standing argument?” asked Tymkovich, a George W. Bush appointee.
U.S. Circuit Judge Carolyn McHugh found discrepancies between Powell’s argument and the record before her.
“I didn’t see anywhere in the briefing to this court where you take issue with the court’s decision to not address the argument,” the Barack Obama appointee said. “I’d love it if you could point me to where you challenge the district court’s decision that it need not assess whether there was standing for the registration claim.”
Powell said the registration claim was part of the broad argument of injuries and asked the panel to remand the case.
New Mexico Assistant Attorney General Erin Lecocq countered that since the complaint was dismissed without prejudice, the plaintiffs already had the opportunity to refile without the panel issuing a remand.
McHugh asked why the PAC registration requirements didn’t give Cowboys for Trump standing to challenge the state.
“Even if I accept the district court’s decision that they pled themselves out of any argument for independent expenditures, why haven’t they pled standing based on any penalty triggered by registration for contributions?” McHugh said.
Lecocq said the issue wasn’t adequately argued.
“Looking at the four corners of the complaint, I don’t think it’s at all clear that’s what they’ve been pleading,” Lecocq said. “The district court gave them the opportunity to amend their complaint, and they failed to avail themselves to that opportunity. It’s a muddy complaint that at the end of the day is deficient and does not show themselves subject to the injuries they are making.”
Obama-appointed U.S. Circuit Judge Gregory Phillips rounded out the panel. The hearing, which was broadcast remotely via YouTube, counted more than 450 viewers. The court did not indicate when or how it would decide the case.
In 2021, the U.S. Department of Justice charged Griffin over his involvement in the Jan. 6 insurrection at the U.S. Capitol. He faces charges of entering and remaining in a restricted building and disruptive and disorderly conduct in a restricted building. He claims he never entered the building but instead went to pray and peacefully protest.
His trial is set to begin in March.
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