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Section 3 of the 14th Amendment bars lawmakers who, after previously taking an oath to “support the Constitution,” then “engaged in insurrection or rebellion against the same” or gave “aid or comfort to the enemies.” The section was added after the Civil War to prohibit lawmakers from representing a government they had wanted to toppled.
Greene repeatedly refers to the Jan. 6, 2021, insurrectionists as “patriots” and has called those arrested over the attack on the Capitol “political prisoners.” She has been recorded on video announcing her opposition to the peaceful transition of power to Joe Biden after Donald Trump lost the 2020 presidential election.
Totenberg ruled that Greene had failed to meet the “burden of persuasion” in her call for an injunction to shut down the case.
“This case involves a whirlpool of colliding constitutional interests of public import,” the judge noted. “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 particularly demanding.”
Totenberg also said that Greene had failed to prove that there was a strong likelihood she would prevail in the case on the basis of her legal claims.
The decision by Totenberg, who was appointed by President Barack Obama, wasn’t a surprise. She had expressed concerns about an earlier ruling granting an injunction against the same challenge regarding Rep. Madison Cawthorn (R-N.C.). A Donald Trump-appointed judge ruled in that case that a federal Amnesty Act for those who participated in the Civil War against the government overrode the clause.
Several legal experts, however, have argued that a law cannot countermand the Constitution — and that such an interpretation of the act would appear to grant blanket immunity for any insurrectionists forever into the future, regardless of the circumstances.
Greene’s attorneys cited the Cawthorn decision, but Totenberg said she had “significant questions and concerns” about the ruling. “I don’t think that the Amnesty Act likely was prospective,” she said, according to CNN.
The decision in the Cawthorn case is now being appealed in an expedited hearing.
The reelections of Rep. Paul Gosar (R-Ariz.), Rep. Andy Biggs (R-Ariz.) and Mark Finchem, a Republican running for Arizona secretary of state, are also being challenged in court on the same constitutional grounds linked to support for the insurrection of Trump supporters.
A lawyer for Free Speech for People called Totenberg’s decision the right ruling in an extraordinary situation.
“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,” Legal Director Ron Fein said in a statement provided to HuffPost.
“The Constitution disqualifies from public office any elected officials who aided the insurrection. We look forward to asking Rep. Greene about her involvement under oath,” Fein added.
One of the voters suing in the case, Army veteran Michael Rasbury, noted that he took an oath in the military to “protect and defend the Constitution from all enemies, foreign and domestic. 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,” he said, according to Free Speech for People. “She should not be on the ballot.”
Greene’s attorney, James Bopp, told The New York Times the ruling was “fundamentally undemocratic.” He insisted that Greene has “publicly and vigorously condemned the attack on the Capitol.”
