Friday, May 06, 2022

Some Thoughts on the Taylor-Greene Decision

Gerard N. Magliocca

Today the ALJ recommended to the Georgia Secretary of State that Representative Taylor-Greene is not ineligible to run for another term under Section Three of the Fourteenth Amendment. The Secretary of State adopted the ALJ's recommendation, though that determination will be challenged on appeal. I have three comments about the decision.

First, the sky did not fall because a state eligibility proceeding was held. A Section Three challenge was made, state law was applied, an evidentiary hearing was held, and an impartial ALJ reached a conclusion. This sets a fair precedent for how a similar challenge to Donald Trump should be handled in Georgia if he decides to run again for President.

Second, the ALJ rejected the claim that a criminal conviction is required to apply Section Three. This is an important point because many commentators have erroneously stated that a conviction is required.

Third, the ALJ said that under some circumstances an overt act is not required to meet the constitutional standard of "engage in insurrection." Here is the relevant passage:

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. Id. 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”). 

This analysis will probably get the most attention if and when the next eligibility hearing is held. 




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