The Volokh Conspiracy
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Rep. Marjorie Taylor Greene Not Disqualified from Federal Office
So Georgia Administrative Law Judge Charles R. Beaudrot ruled yesterday.
You can read the full opinion in Rowan v. Greene (Ga. Ofc. State Admin. Hearings); here's an excerpt:
Challengers allege that Rep. Greene "does not meet the federal constitutional requirements for a Member of the U.S. House of Representative1s and is therefore ineligible to be a candidate for such office." They assert that Rep. Greene "voluntarily aided and engaged in an insurrection to obstruct the peaceful transfer of presidential power, disqualifying her from serving as a Member of Congress under Section 3 of the 14th Amendment …." … This section of the 14th Amendment provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability….
To prove that the Disqualification Clause bars Rep. Greene's candidacy, Challengers must show that:
- after Greene took an oath to defend the Constitution
- she engaged
- in insurrection against the Constitution.
The parties have stipulated that the first time Rep. Greene took an oath to defend the Constitution was January 3, 2021, when she was sworn in as a member of Congress. Therefore, only conduct by Rep. Greene occurring after taking that oath on January 3, 2021, is relevant in determining whether the Disqualification Clause applies. Similarly, statements made by Rep. Greene and actions taken by her prior to her taking of the oath on January 3, 2021, are only relevant, and can only be considered, to the extent they explain her conduct occurring after the taking of the oath….
There appear to be two judicial opinions that have considered the meaning of the word "engage" as used in the Disqualification Clause. See United States v. Powell, 65 N.C. 709 (1871) (defining "engage" as "a voluntary effort to assist the Insurrection … and to bring it to a successful [from insurrectionists' perspective] termination"); Worthy v. Barrett, 63 N.C. 199, 203 (1869) (defining "engage" as "[v]oluntarily aiding the rebellion by personal service or by contributions, other than charitable, of anything that was useful or necessary").
It appears that it is not necessary that an individual personally commit an act of violence to have "engaged" in insurrection. See Powell, 65 N.C. at 709 (defendant paid to avoid serving in Confederate Army); Worthy, 63 N.C. at 203 (defendant simply served as county sheriff). Nor does "engagement" require previous conviction of a criminal offense. See, e.g., Powell, 65 N.C. at 709 (defendant not charged with any prior crime); Worthy, 63 N.C. at 203 (defendant not charged with any crime); In re Tate, 63 N.C. 308 (1869) (defendant not charged with any crime); Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT. 87, 98–99 (2021) (in special congressional action in 1868 to enforce Section Three and remove Georgia legislators, none of the legislators had been charged criminally).
Rep. Greene points to the use of word "engage" in a similarly-worded 1867 statute with more severe consequences (disenfranchisement) than the Disqualification Clause. The then Attorney General construed that statute to require "some direct overt act, done with the intent to further the rebellion." The authority does not indicate that a prior criminal conviction is necessary to trigger the Disqualification Clause.
On balance, therefore, it appears that "engage" includes overt actions and, in certain limited contexts, words used in furtherance of the insurrections and associated actions. "Merely disloyal sentiments or expressions" do not appear be sufficient. But marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding, would appear to constitute "engagement" under the Worthy–Powell standard. To the extent (if any) that an "overt act" may be needed, see id., it would appear that in certain circumstances words can constitute an "overt act," just as words may constitute an "overt act" under the Treason Clause, e.g., Chandler v. United States, 171 F.2d 921, 938 (1st Cir. 1948) (enumerating examples, such as conveying military intelligence to the enemy), or for purposes of conspiracy law, e.g., United States v. Donner, 497 F.2d 184, 192 (7th Cir. 1974) (even "constitutionally protected speech may nevertheless be an overt act in a conspiracy charge").
Challengers argue that Rep. Greene's speeches, texts, tweets, and appearances evidence a long-term plan to foment an insurrection on January 6 in order to prevent Congress from completing its Constitutional duties in certifying the election of President Biden. Under Challengers' view of the evidence, Rep. Greene was planning and furthering insurrection long before she took office. This plan, they contend, began as soon as it was clear that President Trump would lose the 2020 election. Under Challengers' view of the evidence, the January 6 Invasion was "Plan B," to be triggered when efforts to object to the Electoral College votes and to persuade Vice President Pence to refuse the certification of President Biden failed.
The difficulty with Challengers' theory is the lack of evidence. Whatever the exact parameters of the meaning of "engage" as used in the 14th Amendment, and assuming for these purposes that the Invasion was an insurrection, Challengers have produced insufficient evidence to show that Rep. Greene "engaged" in that insurrection after she took the oath of office on January 3, 2021. In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any action—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.
There is no evidence to show that Rep. Greene participated in the Invasion itself. To the contrary, the evidence shows that she was inside the Capitol building at the time, and unaware of the Invasion until proceedings were suspended at approximately 2:29 p.m. on January 6, 2021.
Further, there is no evidence showing that after January 3, 2021, Rep. Greene communicated with or issued directives to persons who engaged in the Invasion. Challengers point to Rep. Greene's apparent prior contact with certain persons, such as Anthony Aguero. They point to postings from various persons, such as Ali Alexander. But the evidence does not show that Rep. Greene was in contact with, directed, or assisted these individuals, or indeed anyone, in the planning or execution of the Invasion. Rep. Greene denies any such contact or involvement and that denial stands unchallenged by other testimony or documentary evidence.
Challengers make a valiant effort to support inferences that Rep. Greene was an insurrectionist, but the evidence is lacking, and the Court is not persuaded. The evidence shows that prior to January 3, 2021, Rep. Greene engaged in months of heated political rhetoric clothed with strong 1st Amendment protections. NAACP v. Claiborne Hardware Co. (1982); see also Brandenburg v. Ohio (1969). The evidence does not show Rep. Greene engaged in months of planning and plotting to bring about the Invasion and defeat the orderly transfer of power provided for in our Constitution. Her public statements and heated rhetoric may well have contributed to the environment that ultimately led to the Invasion. But expressing constitutionally-protected political views, no matter how aberrant they may be, prior to being sworn in as a Representative is not engaging in insurrection under the 14th Amendment.
Challengers point to Rep. Greene's statement during the Newsmax Interview on January 5, 2021, as a literal call to arms to storm the Capitol. {In this interview …, Rep. Greene discussed her plans to challenge the results of the 2020 presidential election by supporting challenges to the certification of Electoral College votes. When asked, "What is your plan tomorrow? What are you prepared for?" Rep. Greene answered, "Well, you know, I'll echo the words of many of my colleagues as we were just meeting together in our GOP conference meeting this morning. This is our 1776 moment."}
The Court finds this to be the only conduct that could even possibly be interpreted as triggering the Disqualification Clause. If this statement was in fact a coded message from Rep. Greene to her co-conspirators to go forward with a previously planned incursion into the Capitol, it might constitute an overt act and one that occurred after she took her oath as Representative.
Based on the evidence, the Court is unpersuaded that Rep. Greene's ambiguous statement that "[t]his is our 1776 moment" was a coded call to violent insurrection on January 6, 2021. Heated political rhetoric? Yes. Encouragement to supporters of efforts to prevent certification of the election of President Biden? Yes. Encouragement to attend the Save America Rally or other rallies and to demonstrate against the certification of the election results? Yes. A call to arms for consummation of a pre-planned violent revolution? No. It is impossible for the Court to conclude from this vague, ambiguous statement that Rep. Greene was complicit in a months-long enterprise to obstruct the peaceful transfer of presidential power without making an enormous unsubstantiated leap….
The parties and the Court agree that the actions of the participants in the Invasion were despicable. The parties strongly disagree, however, as to whether the Invasion constituted an "insurrection" within the meaning of the 14th Amendment. They proffer competing definitions of the meaning of the term "insurrection" as used in the 14th Amendment and whether the events of the Invasion meet those definitions.
The events that occurred on January 6, 2021, are truly tragic. Multiple lives were lost, including those of law enforcement officers who died defending the Capitol. Many sustained injuries, some of them permanent and life-changing. The citadel of democracy, the U.S. Capitol, was violently breached in the most serious incursion in 200 years. Members of Congress, including Rep. Greene, were forced to take shelter for several hours to avoid the wrath of the invaders. Congress was unable to perform its obligations under the 12th Amendment to the Constitution. It is among the saddest and most tragic days in the history of our American Republic. The well documented images of the events of the day are painful in the extreme.
Whether the Invasion of January 6 amounted to an insurrection is an issue of tremendous importance to all Americans and one that may yet be addressed. However, it is not a question for this Court to answer at this time. Because the Court finds Rep. Greene did not "engage" in the Invasion, either as a direct participant or in its planning and execution, after taking her oath on January 3, 2021, it is not necessary to address the question of whether the events of January 6 constituted an "insurrection" within the meaning of the 14th Amendment.