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Federal Judge Refuses to Block Effort to Disqualify Marjorie Taylor Greene from Office Under 14th Amendment ‘Insurrection’ Prohibition


US Representative Marjorie Taylor Greene, Republican of Georgia, speaks during a press conference on Capitol Hill on February 5, 2021 in Washington, DC. - The Democratic-led US House voted on February 4, 2021 to discipline a congresswoman who embraced QAnon conspiracy theories and endorsed violence, capping weeks of mounting turmoil over holding to account a lawmaker whose extremist rhetoric caused a rupture in Republican ranks. (Photo by Alex Edelman / AFP)

Donald Trump loyalist Rep. Marjorie Taylor Greene (R-Ga.) cannot block efforts to disqualify her from running for re-election on the grounds that she allegedly engaged in insurrection, a federal judge ruled.

The ruling does not itself stop Greene’s re-election campaign, but it means a federal court will not grant Greene’s lawyers request to end-run a challenge submitted to Georgia Secretary of State Brad Raffensperger (R) assessing that question. A challenge, brought by five Georgia voters, will now go before an administrative law judge in Atlanta on Friday.

“This case involves a whirlpool of colliding constitutional interests of public import,” U.S. District Judge Amy Totenberg, a Barack Obama appointee who is the sister of NPR legal correspondent Nina Totenberg, wrote in a 73-page opinion. “The novelty of the factual and historical posture of this case – especially when assessed in the context of a preliminary injunction motion reviewed on a fast track – has made resolution of the complex legal issues at stake here.”

Reaching a sharply different conclusion than a Trump-appointed judge did in early March, Totenberg found that the 1872 Amnesty Act passed by Congress during Reconstruction was never meant to protect future insurrectionists from being disqualified from public office. It only applied to the then-recent insurrection that was the Confederacy, she ruled.

That’s just “common sense,” the judge found.

“Strains Credulity”

Since the Jan. 6 attack on the U.S. Capitol, the non-profit group Free Speech for People has gone on a legal blitz across the nation seeking to disqualify elected officials they believe to have aided or participated in the siege. The group previously filed similar actions against Rep. Madison Cawthorn (R-N.C.) and Rep. Paul Gosar (R-Ariz.) on the same grounds, citing the 14th Amendment’s disqualification clause. Here, the group represents five registered voters in Georgia’s 14th Congressional District.

“No Person shall be a Senator or Representative in Congress… who, having previously taken an oath, as a member of Congress… 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,” the third section of the amendment reads.

Attempting to fend off such efforts, Greene and Cawthorn turned to the same prominent Republican lawyer: James Bopp Jr., who has argued that the Amnesty Act effectively nullified that penalty against former Confederates. Bopp argued that the law applied not only to the past insurrection that was the Civil War, but prospectively shielded future ones, too. The Georgia voters seeking to disqualify Greene became intervenors in the federal litigation.

As Judge Totenberg noted, however, the phrase “shall have engaged” is the future perfect tense, and the text of the Amnesty Act uses the past tense.

“Moreover, as intervenors argue, it strains credulity for plaintiff to argue that Congress can ‘remove’ something that does not yet exist,” Totenberg noted.

For Cawthorn, that argument prevailed in the court of Chief U.S. District Judge Richard E. Myers, II, who leads the Eastern District of North Carolina. Myers, a Trump appointee, ruled that the Amnesty Act shielded Cawthorn just as surely as it did insurrectionists of old. Cawthorn denies having taken part in the Jan. 6 breach of the U.S. Capitol, as does Greene.

Greene’s challengers point to her extreme rhetoric in the weeks leading up to Jan. 6 suggesting that violence might be necessary to keep Trump in power, calling the date “our 1776 moment.”

“You can’t allow it to just transfer power ‘peacefully’ like Joe Biden wants and allow him to become our president because he did not win this election,” Greene is quoted as saying. “He’s guilty of treason. It’s a crime punishable by death is what treason is. Nancy Pelosi is guilty of treason.”

Judge Totenberg skewered her colleague’s finding on the applicability of the Amnesty Act.

“Suffice it to say, the Court is skeptical,” Totenberg wrote. “It seems much more likely that Congress intended for the 1872 Amnesty Act to apply only to individuals whose disabilities under Section 3 had already been incurred, rather than to all insurrectionists who may incur disabilities under that provision in the future.”

“This reading is supported not only by the text of the statute and the practical limitations on Congress’s authority, but also by pure common sense,” the ruling continues. “As Intervenors’ counsel pointed out, it would make little sense for Congress to have prohibited Jefferson Davis and other leaders of the Confederacy from serving in Congress in 1872 while simultaneously granting blanket amnesty to all future insurrectionists regardless of their rank or the severity of their misconduct. But that is precisely the reading that Plaintiff asks this Court to adopt. The far more plausible reading is that Congress’s grant of amnesty only applied to past conduct.”

Bopp did not immediately respond to Law&Crime’s press inquiry.

“All Enemies, Foreign and Domestic”

The challenge against Greene claims that she “aided and engaged in 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 and rendering her ineligible under state and federal law to be a candidate for such office.”

The challengers’ lawyer Ron Fein, the legal director of Free Speech for People, wrote that he looks forward to proving that case.

“It’s rare for any conspirator, let alone a Member of Congress, to publicly admit that the goals of their actions are preventing a peaceful transfer of power and the death of the president-elect and Speaker of the House, but that’s exactly what Marjorie Taylor Greene did,” Fein wrote in a statement. “The Constitution disqualifies from public office any elected officials who aided the insurrection, and we look forward to asking Representative Greene about her involvement under oath.”

One of his clients, Georgia voter Michael Rasbury, echoed those remarks.

“I believe in democracy. When I served in the Army, I had to take an oath of office to protect and defend the Constitution from all enemies, foreign and domestic,” Rasbury said. “Everything I’ve read says Rep. Greene was involved in the Jan. 6th insurrection that was trying to override everything I believe in – Our Constitution, how we run elections, and how our government is set up. She should not be on the ballot.”

Georgia’s primary election is scheduled to take place on next month on May 24. Counties may start mailing absentee ballots by April 25.

Without a federal judge’s shield, Greene could be kept off the candidate list if Raffensperger validates the challenge against her. The proceedings before Raffensperger are expected to start on Wednesday, leaving little time to appeal any ruling against her.

“These ballots have to be printed in advance of mailing,” Bopp wrote in his federal complaint. “As a practical matter, it is virtually impossible to fully adjudicate the Greene Challenge, including all appeals as of right, before at least these absentee ballots are printed, and likely not before they are mailed.”

Bopp also argued that the efforts to disqualify Greene violated her First Amendment rights, but the judge noted that the citizens undertaking this process are also asserting their rights.

“However, plaintiff’s claim here wholly ignores citizens’ own First Amendment rights to file complaints regarding the operation of the electoral process that the Challenge Act recognizes,” the judge replied.

Greene’s challengers will now face off against her on at an administrative hearing in Atlanta on Friday, April 22 at 9:30 a.m.

Read the ruling, below:

(Photo by ALEX EDELMAN/AFP via Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."