Dueling post-hearing briefs from both sides of the attempt to disqualify U.S. Rep. Marjorie Taylor Greene of Northwest Georgia from the ballot were filed Friday with Georgia's Office of State Administrative Hearings.
Free Speech for People, a Massachusetts advocacy group, made its post-hearing brief available online. Based on an amendment to the Constitution designed to bar Confederates from serving as elected officials after the Civil War, Free Speech for People is leading the legal battle alleging that Greene took part in an insurrection on Jan. 6 and thus should be disqualified from running for Congress. Attorneys for Greene's defense provided their filings by email.
Here are a few relevant passages from their briefings:
Attorneys for the ballot challenge petitioners opened with:
"The oath to support and defend the United States Constitution against all enemies imposes great responsibility. The architects of the 14th Amendment understood this well. They witnessed the carnage that results when the people's representatives abdicate their responsibilities, abandon their oaths and try to abolish the system of government they swore to defend. They enacted Section Three of the 14th Amendment to prevent those who betray their oaths of office in this manner from holding positions of power ever again."
Greene's defense countered:
"If you need a code breaker or a decoder ring to determine if a member of Congress engaged in insurrection — she didn't. If accusers need to assign ill motives to a member of Congress by using a quote from the sci-if movie 'Independence Day,' those accusers might be engaging in entertaining political theater, but they don't have proof the candidate engaged in insurrection. If virtually your entire case is based upon news reports and opinion pieces, tweets made by the accused over a two-year period (before being elected to Congress), tweets other people tweeted over that same period and accusations that references to the year this country was founded were really calls to violence — then your bid to remove a candidate from the ballot, in an effort to prevent citizens from voting for a candidate you don't agree with — has failed."
The petitioners, on Greene's alleged advocacy for violence:
"In tweet after tweet, video after video, she told her supporters that their government was being taken from them and implored them to 'fight' — a term that Greene's audience did not understand purely figuratively — to win it back. In one stark example, she told her supporters, '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.' She framed the rapidly approaching, Constitutionally mandated, peaceful transition of power as an existential battle, a new independence day from the 'oppression' of our constitutional system, a new July 4, 1776."
"Instead of a perpetrator of the despicable attack, she was one of its victims. She was sequestered for hours, she was scared and confused, and she and her family feared for her life. And rather than participating in the attack, she was trying to stop it. In tweets and a video while she was sequestered, she urged people to 'Stay peaceful. Obey the laws.' She urged people 'to have a peaceful protest... in a peaceful manner... and obey the laws.'"
The petitioners, on Greene's alleged advocacy for violence:
"In the weeks and months after Greene's supporters heeded her call to invade the Capitol, she belatedly and insincerely attempted to cast herself as an advocate for peace. But the record includes no evidence of her calling for peaceful protest prior to the insurrection on Jan. 6, 2021 — and, under oath, Greene could not identify a single instance in which Greene urged her supporters to be peaceful before the insurrection."
The defense countered:
"The [Constitutional] Disqualification Clause doesn't use the term 'incitement' and another federal statute that does so uses it as distinct from 'engage in,' showing they mean different things, Act of July 17, 1862, ch. CXCV, § 2 (felony to 'incite, set on foot, assist, or engage in any rebellion or insurrection') (current version codified at 18 U.S.C. § 2383), so even if Rep. Greene 'incited' an insurrection, which she did not, she would still not have 'engaged in' an insurrection, which requires conduct, not speech by a direct overt act of insurrection."
Attorneys for the petitioners, on if Greene "engaged" in the insurrection:
"'Engage' includes both words and actions. Confederate leaders (from Jefferson Davis down) used words to tell subordinates what to do. Although 'merely disloyal sentiments or expressions' may not be sufficient, P-48, col. 4 (12 U.S. Op. Atty. Gen. 141, 164 (1867)) (emphasis added), marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding, constitute 'engagement'..."
Attorneys for the petitioners, on what is an insurrection:
"An 'insurrection' is a 'combined resistance' to 'lawful authority,' with the intent to deny the exercise of that authority. See P-80 (Webster's Dictionary, 1830) ('combined resistance to... lawful authority..., with intent to the denial thereof'); P-81 (Georgia insurrection statute, 1866) ("[a] rising against civil or political authority"); Allegheny Cty. v. Gibson, 90 Pa. 397, 417 (1879) (nearly identical definition). To qualify as an insurrection, the resistance must be formidable enough to temporarily defy the authority of the government."
Greene's defense counters:
"Little if any organization is in evidence, let alone for the purpose of overthrowing the government, and organizing for First Amendment purposes can't be counted as insurrection. And there was no evidence of firearms, as would be expected for a planned insurrection, certainly nothing close to the sort of armed insurrection that the 14th Amendment's Section Three targeted, i.e., the Civil War, and no evidence of any serious effort to overthrow the government."
"The primary way that leaders engage in insurrection is through their speech — their commands and their advocacy. Under Greene's theory, the vast majority of Confederate political leaders (including Jefferson Davis) were not disqualified by Section Three — most never fired a shot or gave a speech that met the Brandenburg definition of inciting 'imminent lawless action.' That Greene's engagement in the insurrection included oral advocacy does not immunize her from disqualification; to the contrary, it makes her exactly the sort of insurrectionist that the Disqualification Clause was intended for.
The ballot challengers, to summarize:
"Greene now stands among the ashes claiming ignorance and innocence. She purports not to recall any of her incendiary words, even though they are preserved and are part of the record. She hides behind the First Amendment, without acknowledging that she is no longer a private citizen, that Section Three appropriately limits the rights of Congress members to engage in insurrection, or that she accepted a solemn duty when she 'freely took the oath of office.'"
The defense's summary:
"In sum, there is absolutely no evidence that Rep. Greene committed any direct overt act of insurrection, and her speech was not conduct, but even so, it did not even amount to incitement. Many of her statements in evidence are either wholly irrelevant to her conduct of Jan. 6 and/or fully protected by the First Amendment and cannot establish that Rep. Greene engaged in insurrection. She did not."