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This Isn’t the Right Way to Get Marjorie Taylor Greene Out of Congress

Today’s hearing is inappropriate to the task, in terms of both process and justice.
April 22, 2022
This Isn’t the Right Way to Get Marjorie Taylor Greene Out of Congress
(Composite / Photos: GettyImages / Shutterstock)

Marjorie Taylor Greene is a national disgrace, as is the willingness of her constituents to inflict her on the rest of us. But the efforts to disqualify her from the 2022 ballot that culminated in today’s hearing before an administrative law judge in Georgia are, at best, misplaced.

You may have seen the videos of the hearing circulating online—including videos of the congresswoman saying that she did not recall saying or writing many things that there is a clear record of her saying and writing. These are made-for-virality moments, so it’s not surprise that they’re trending on social media. They will likely get cable-news coverage tonight, too.

But as entertaining and disturbing as these moments have been, this is not the right way to get a member of Congress out of office.

Greene is unfit to be a member of Congress under any reasonable definition. She is a lunatic conspiracy theorist who would rather rant about soup than legislate. She has been barred from serving on committees, has screamed abuse at the president during the State of the Union, and has repeatedly harassed colleagues she disagrees with. The only silver lining to her presence in the House is the possibility that, if she violates House rules a few more times, we might financially break even on the deal.

She is also one of the most outspoken proponents of Trump’s Big Lie election fraud claims. And she has been credibly implicated in the efforts to organize the Jan. 6th rally that rapidly descended into outright sedition. This has led to efforts by a number of people, including a handful of her constituents, to have her disqualified from running for re-election.

The logic behind their effort is simple and, to be fair, has some superficial appeal. The Fourteenth Amendment says that

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.

Greene helped organize the Jan. 6th insurrection, they argue, therefore Greene is disqualified and should not appear on the ballot.

But if I were the judge in this case, I’d be very skeptical of the theory. A state administrative law tribunal is an ill-equipped and inappropriate venue for determining whether someone engaged in insurrection against the United States—just as it was, ten years ago, for determining whether someone was born in the United States or Kenya. Being asked to disqualify someone who is 20 years old from appearing on the presidential ballot is one thing. Age is relatively simple to determine, birth certificates and other evidence are widely available, and there is an objective standard to apply. Determining whether someone has committed a serious federal crime is not so simple. That’s one of the reasons we place those decisions in the hands of a jury, rather than any one person.

Greene has not been charged, indicted, or convicted of insurrection. Nor has the House of Representatives, which has the sole power under the Constitution to decide the qualifications of its own members, decided that Greene is disqualified because she is an insurrectionist. In the face of this, asking a single judge to decide that Greene is disqualified, and to then refer that decision to a partisan elected official to remove her name from the ballot, flies in the face of due process norms.

It is understandable that many do not want Greene to continue to soil the halls of Congress. But this hearing is not the way to fix that problem.

Mike Dunford

Mike Dunford is a lawyer and intellectual property researcher at Queen Mary University of London, where he focuses on issues related to copyright and online communities. The views expressed here are his own. Twitter: @questauthority.