BEFORE THE OFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIA

DAVID ROWAN, DONALD GUYATT,

ROBERT RASBURY, RUTH
DEMETER, and DANIEL COOPER, Docket No.: 2222582
Petitioners/Challengers, 2222582-OSAH-SECSTATE-CE-57-
Beaudrot
v.

MARJORIE TAYLOR GREENE, 05-06-2022

Respondent/Candidate.

INITIAL DECISION

I. Introduction

This matter arises from challenges brought by the Petitioners (“Challengers”) to the

qualifications of Respondent Marjorie Taylor Greene (“Rep. Greene”) for office under O.C.G.A.

§ 21-2-5.

Specifically, Challengers allege that Rep. Greene “does not meet the federal constitutional

requirements for a Member of the U.S. House of Representatives and is therefore ineligible to be

a candidate for such office.” (OSAH Form 1). They assert that Rep. Greene “voluntarily aided

and engaged in an 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 . . . .” (Id.;

Stipulated Facts ¶ 5).

Challengers filed their challenge to Rep. Greene’s candidacy with the Secretary of State on

March 24, 2022. When referring this matter to the Office of State Administrative Hearings

(“OSAH”), the Secretary of State requested that it be heard on an expedited basis due to its time-

sensitive nature. Accordingly, on March 24, 2022, the matter was docketed, and a notice of hearing

was sent to the parties. The hearing initially was scheduled to be held April 13, 2022.

On April 1, 2022, Rep. Greene filed an action in the United States District Court for the

Northern District of Georgia, styled Greene v Raffensperger, No. 1:22-cv-01294-AT, seeking to

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enjoin the hearing in this matter and other relief (the “Federal Court Litigation”).

On April 11, 2022, counsel for the parties and the Court participated in an extended

telephone conference (the “April 11 Conference”) to discuss a variety of pending motions and to

address issues regarding the conduct of the hearing in this matter. During the April 11 Conference,

the parties, through their respective counsel, agreed to postpone the hearing to accommodate Rep.

Greene’s schedule. The hearing then was rescheduled to Friday, April 22, 2022, at 9:30 a.m.

Following the April 11 Conference, the undersigned issued an Order on April 13, 2022,

addressing pending matters and motions (the “April 13 Order”). In the April 13 Order, among

other actions, the Court granted Rep. Greene’s motion regarding burden of proof, ruling that the

burden of proof in this matter rests upon Challengers.

In an Order entered on April 18, 2022, in the Federal Court Litigation (the “Federal Court

Order”), Judge Amy Totenberg ruled as follows:

After a thorough analysis of the evidentiary and legal issues presented in this
complex matter involving unsettled questions of law, the Court finds Plaintiff
[Respondent] has not carried her heavy burden to establish a strong likelihood of
success on the legal merits in this case. Accordingly, the Court denies the
Plaintiff’s Motions for Temporary Restraining Order and Preliminary Injunction
. . . . The state proceedings under the Challenge Statute [O.C.G.A. § 21-2-5] may
therefore proceed.

The hearing in this matter was held on April 22, 2022, beginning at 9:30 a.m. At the

hearing, Andrew G. Celli, Esq. and Ronald Fein, Esq. appeared for Challengers, and James Bopp,

Esq. appeared for Rep. Greene. Witnesses at the hearing consisted of Rep. Greene and Gerard N.

Magliocca, Professor of Law at Indiana University. Documentary evidence, including certain

video recordings and written records proffered by the parties, reviewed by the Court in advance of

the hearing and the subject of a telephone hearing with counsel on April 21, 2022, was admitted.

Additional documentary evidence was admitted during the course of the hearing. The hearing was

recorded using audio and video technology as well as stenographically by a court reporter.

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 The parties filed post-hearing briefs and various supporting exhibits on April 29, 2022, and

the record was closed at that time. Included as an exhibit to Challengers’ post-hearing brief is a

rough transcript of the hearing. References to testimony at the hearing will refer to the page

numbers used in this transcript.1

After review of evidence in this matter and the legal arguments and authorities presented

at the hearing and in the parties’ briefs, the Court concludes that the evidence in this matter is

insufficient to establish that Rep. Greene, having “previously taken an oath as a member of

Congress . . . to support the Constitution of the United States . . . engaged in insurrection or

rebellion against the same, or [gave] aid or comfort to the enemies thereof” under the 14th

Amendment to the Constitution.

As this is the sole basis for Challengers’ suit, the Court concludes that Rep. Greene is

qualified to be a candidate for Representative for Georgia’s 14th Congressional District.

II. Issue for Decision

The issue for decision in this matter is whether Rep. Greene engaged in insurrection or

rebellion against the United States and is therefore disqualified as a candidate for Representative

for Georgia’s 14th Congressional District by reason of Section 3 of the 14th Amendment to the

Constitution. U.S. CONST. amend. XIV, § 3. This section of the 14th Amendment provides:

No person shall be a Senator or Representative in Congress, or elector of President

and Vice-President, or hold any office, civil or military, under the United States,
or under any State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State, 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. But Congress

1
In the interest of expediency, the Court cannot await the official transcript of the hearing, which is scheduled to be
released May 9, 2022. In this Decision, the Court cites to the unofficial transcript only after concluding that the portion
cited accurately reflects the undersigned’s recollection of the proceedings.

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 may by a vote of two-thirds of each House, remove such disability.
Id.

III. Findings of Fact

1. Rep. Greene is over the age of 25, has been a United States citizen for more than seven

years, and is an inhabitant of Georgia. (Stipulation ¶¶ 1-3).

2. Challengers are all registered voters in Georgia’s 14th Congressional District. (Stipulation

¶ 4).

3. In the 2020 election, Rep. Greene successfully ran for, and was elected to, Congress as

Representative from Georgia’s 14th Congressional District. (Testimony of Rep. Greene; Exhibit

P-65).

4. As a result of the 2020 presidential election, Joseph R. Biden obtained a majority of

Electoral College votes. (Exhibit P-19, p. 21; Exhibit P-36).

5. President Trump did not accept the results of the 2020 election and initiated challenges to

the election results. These efforts were conducted under the rubric of “Stop the Steal.” (Exhibit

P-19, p. 21; Exhibits P-2, P-18, P-54)

6. Rep. Greene actively supported President Trump’s efforts to challenge the results of the

2020 presidential election. (Testimony of Rep. Greene, Tr. 91–93, 101; Exhibits P-1D, P-1E, P-

1-F, P-1G, P-1K, P-1M).

7. As part of the Stop the Steal campaign, supporters of President Trump organized rallies

and demonstrations, including the “Save America Rally” to be held at the White House Ellipse on

January 6, 2021. (Exhibit P-19, p. 22; Exhibits P-2C, P-2D, P-68).

8. One purpose of the Save America Rally was to encourage members of Congress to oppose

the certification of the election results of the Electoral College by objections and votes on the floor,

and to encourage Vice President Pence to refuse to certify the results of the Electoral College if

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those objections failed to result in President Trump being declared the winner of the 2020

presidential election. (Exhibit P-54; Exhibit P-18).

9. Rep. Greene encouraged supporters to be present in Washington, D.C. on January 6, 2021.

(Testimony of Rep. Greene, Tr. 90–91; Exhibit P-2C).

10. On January 3, 2021, Rep. Greene took the oath of office to be a Member of the U.S. House

of Representatives for the first time. (Stipulation ¶ 5; Exhibit P-65).

11. On January 5, 2021, Rep. Greene participated in a broadcast interview on Newsmax. In

this interview (the “Newsmax Interview”), Rep. Greene discussed her plans to challenge the results

of the 2020 presidential election by supporting challenges to the certification of Electoral College

votes. When asked, “What is your plan tomorrow? What are you prepared for?” Rep. Greene

answered, “Well, you know, I’ll echo the words of many of my colleagues as we were just meeting

together in our GOP conference meeting this morning. This is our 1776 moment.” (Exhibit P-27;

Tr. 167:1-4).

12. At or around 1:00 p.m. on January 6, 2021, a joint session of Congress was called to order

for the purposes of opening, counting, and resolving any objections to the Electoral College vote

of the 2020 presidential election, and certifying the results of the Electoral College vote.

(Stipulation ¶ 6; Exhibit P-36).

13. Rep. Greene did not speak at or attend the Save America Rally. She was inside the Capitol

building while the Save America Rally was occurring. (Testimony of Rep. Greene, Tr. 115:19-

22, 120).

14. President Trump spoke at the Save America Rally. During his speech, President Trump

encouraged the participants at the rally to go to the Capitol. (Exhibit P-54).

15. On January 6, 2021, a group of people that did not include Rep. Greene unlawfully entered

the U.S. Capitol. (Stipulation ¶ 7). This unlawful incursion will be referred to in this Decision as

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the “Invasion” and the participants will be referred to as “Rioters.”

16. By 11:00 a.m. on January 6, 2021, the United States Capitol Police (“USCP”) reported

“large crowds around the Capitol building.” (Exhibit P-19, p. 22). Some of the people gathering

in Washington were “equipped with communication devices and donning reinforced vests,

helmets, and goggles.” (Exhibit P-44, p. 4).

17. President Trump began his address to the Save America Rally just before noon. Id. In his

remarks, he encouraged his supporters to go to the Capitol. (Exhibit P-54, pp. 8–9). Before

President Trump finished his address, “crowds began leaving the Ellipse for the Capitol.” (See

Exhibit P-19, p. 2).

18. By 12:45 p.m., crowds were forming around the Capitol. (Exhibit P-19, p. 22). At 12:53

p.m., the Rioters breached the outer security perimeter the USCP had established around the

Capitol. (Id. at p. 23). At one point, individuals “picked up one of the metal bike racks that

demarcated USCP’s security perimeter and shoved it into the USCP officers standing guard.” (Id.).

Following this initial breach, crowds flooded into the Capitol’s West Front grounds. (Id.). People

“pressed towards the Capitol building—climbing the inaugural platform and scaling walls. The

only remaining security perimeter consisted of the USCP officers positioned around the grounds,

who were overwhelmed and outnumbered.” (Id.).

19. Inside the Capitol, Congress was in session proceeding with its duties under the 12th

Amendment. At approximately 1:15 p.m., the House and the Senate separated to debate objections

to the certification of Arizona’s Electoral College votes. (See Exhibit P-36, p. H77).

20. By 2:06 p.m., Rioters had reached the Rotunda steps, and by 2:08 p.m., they were at the

House Plaza. (Exhibit P-19, p. 24). At 2:10 p.m., the barricades on the West Front and northwest

side of the Capitol were breached. (Id.). Rioters smashed through first-floor windows on the

Capitol’s south side, making a hole big enough to climb through, and a stream of people entered,

6
with two individuals kicking open a nearby door to let others into the Capitol. (Id. at 24–25). On

the east side of the Capitol, individuals “weaved through the restricted area in a military ‘stack’

formation with hands on shoulders and gear,” and ultimately ascended the stairs on the Capitol’s

east side. (Exhibit P-16, ¶¶ 30–32). Some of these individuals were armed with bear spray and

tactical gear and accompanied by an 82-pound German Shepherd. (Exhibit P-44, p. 5).

21. At 2:13 p.m., the Senate was forced to go into recess. (Exhibit P-36, p. S18). At 2:29 p.m.,

the House was forced to follow suit. (Id. at H85). One floor below the Senate chamber, just as

the Senate was beginning its recess, Rioters chased a USCP officer up the stairs to the second

floor, passing within 100 feet of Vice President Pence and his family. (See Exhibit P-73, at 3:08-

3:50). Outside the Capitol, someone announced that Senators “just ran out of the session,” and a

number of Rioters cheered. (Id. at 4:15-4:31).

22. At 2:25 p.m., Rioters overran USCP officers in the crypt just below the Rotunda. (Id. at

6:35-6:45). At the same time, another group entered the Rotunda above from doors on the east

side of the building. (Id. at 6:45-7:10). At 2:43 p.m., Rioters “broke the glass of a door to the

Speaker’s Lobby,” a hallway that would have given them direct access to the House chamber.

(Exhibit P-19, p. 25). When the Rioters attempted to lift Ashli Babbitt, one of their company,

through the opening, “a USCP officer fatally shot her.” (Id.). Less than ten minutes later, Rioters

breached the Senate chamber. (Id. at 26). “In the House chamber, USCP officers barricaded the

door with furniture and drew their weapons,” trying to fend off people who were trying to enter

the chamber. (Id.).

23. Inside and outside of the Capitol, Rioters announced their desire to find and kill lawmakers

and to stop Congress from certifying the Electoral College votes. Recorded statements captured

on video include: “We’re here for you, Nancy,” (Exhibit P-73 at 1:46); “Drag ’em out. Hang ’em

out,” (Exhibit P-73 at 8:07-8:10); “Can I speak to Pelosi? Yeah, we’re coming bitch. Oh, Mike

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Pence? Yeah, we’re coming for you, too, you fucking traitor,” (Exhibit P-72 at 4:27-4:32); “Hang

Mike Pence! Hang Mike Pence!” (Exhibit P-72 at 4:32-4:36); “Start making a list and put all the

names down and we start hunting them down one-by-one,” (Exhibit P-72 at 4:47-4:55). The

Rioters also set up gallows outside the Capitol building. (See Exhibit P-72 at 4:40-4:45).

24. Rioters attacked police officers as they made their way through the Capitol. In one police

radio transmission, an officer sought help as he announced that he was “taking metal, sharpened

objects, missiles, to include bottles and rocks and hand-thrown, chemical-grade fireworks.”

(Exhibit P-72 at 0:58-1:05). Video evidence shows Rioters trying to force their way into the

Capitol through a barrage of police officers in riot gear. (Exhibit P-72 at 3:50-4:14). At one point,

one Rioter forcibly tries to remove a police officer’s gas mask. (Id.).

25. In response to the Invasion, the mayor of Washington, D.C. was forced to call the Secretary

of the Army to seek National Guard support. (Exhibit P-19, p. 24). The USCP called the

commanding general of the D.C. National Guard as well. (Id.). An announcement also went out

over police radio asking for “all military and sworn officers” to come to the Capitol. (Exhibit P-

73, at 9:18-9:39). A number of agencies and entities were needed to repel the Rioters, “including

DHS; the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Montgomery County

Police Department; the Arlington County Police Department; the Fairfax Police Department; and

Virginia State Troopers.” (Exhibit P-19, p. 26).

26. During the Invasion, Members of the House were held in a secret location, guarded by the

USCP and the military. (Testimony of Rep. Greene, Tr. 231:12-15).

27. The Invasion caused significant injuries, damage, and death. Approximately 140 law

enforcement officers reported injuries suffered during the attack. Some of the more serious injuries

included brain injuries, cracked ribs, and smashed spinal discs. One officer was stabbed with a

metal fence stake; another officer lost an eye. Another officer suffered a heart attack after being

8
attacked several times with a stun gun. Three officers lost their lives following the attack. USCP

Officer Brian Sicknick was attacked with bear spray and died on January 7, 2021. Officer Howard

Liebengood died on January 9. Officer Jeffrey Smith died on January 15. (Exhibit P-19, p. 29).

28. Besides the injuries and loss of life, the Invasion caused substantial property damage,

“requiring the expenditure of more than $1.4 million dollars for repairs.” (Exhibit 16, ¶ 40).

29. Numerous persons have been arrested in connection with the Invasion. (See Exhibits P-

16, P-17).

30. Immediately after the Invasion, the U.S. Department of Justice characterized the events of

January 6 as “a violent insurrection that attempted to overthrow the United States Government” in

United States v. Chansley.2

31. Many of the prosecutions of Rioters are still pending trial. In some cases, individuals

pleaded guilty to committing crimes and signed Statements of Offense in which they stipulated to

facts they conceded the United States would be able to prove beyond a reasonable doubt. These

stipulations included acknowledgements that one or more Rioters “entered the Capitol in part to

hinder or delay the certification of President-Elect Joseph R. Biden as President of the United

States,” “intended to use force and did, in fact, use force in the Capitol and when engaging in

physical altercations with law enforcement, in order to prevent, hinder, and delay the execution of

the laws governing the transfer of power,” and “intended to use force and did, in fact, use force to

obstruct, impede, or interfere with the certification of the Electoral College vote, and did forcibly

assault, resist, oppose, impede, intimidate, or interfere with, officers or employees of the United

States.” (Exhibit P-16, ¶¶ 32, 36; Exhibit P-17, ¶ 42).

32. Congress has characterized the Invasion as an insurrection. In Public Law 117-32, which

2
Government’s Brief in Support of Detention at 1, United States v. Chansley, No. 2:21-MJ-05000-DMF (D. Ariz. Jan.
14, 2021), ECF No. 5.

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the House passed by a 406-21 majority, and the Senate passed unanimously, Congress declared,

“On January 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building and

congressional office buildings and engaged in acts of vandalism, looting, and violently attacked

Capitol Police officers.” (Exhibit P-22 § 1(2)).

33. On February 13, 2021, Senator Mitch McConnell stated on the floor of the Senate that the

people who entered the Capitol on January 6 had “attacked their own government.” (Exhibit P-55,

p. S735). “They used terrorism to try to stop a specific piece of domestic business they did not

like,” he continued. Id. “Fellow Americans beat and bloodied our own police. They stormed the

Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted

about murdering the Vice President.” Id.

34. The January 6, 2021, joint session of Congress was suspended during the Invasion, and the

members of Congress took shelter. The Senate did not reconvene until 8:06 p.m. (See P-36 at

S18). The House reconvened at 9:02 p.m. (See id. at p. H85.) Congress did not certify the

Electoral College votes until 3:40 a.m.

35. During the Invasion, Rep. Greene took shelter in a secure location in the Capitol with other

members of Congress. While sheltering in the cloak room inside the House Chamber, Rep. Greene

recorded and transmitted a video, a copy of which was admitted into evidence as Exhibit R-1, and

a transcript of which was admitted as Exhibit R-4. In this video, Rep. Greene stated:

Hi, everyone. This is Congresswoman Marjorie Taylor Greene. I am putting out a

message to you all just letting you know for all the great people, wonderful
Americans who support President Trump that are here in Washington, D.C. today,
today is a time to support your President; and just know that we’re fighting for you
here in the Capitol in Congress, fighting for your vote and fighting for President
Trump.
So I urge you to remain calm. I urge you to have a peaceful protest. Make sure
that everyone is safe and protected, and let’s do this in a — in a peaceful manner.
This is — this is not a time for violence. This is a time to support President Trump,
support our election integrity, and support this important process that we’re going
through in Congress where we’re allowed to object.

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 So this is — this is very important, so I urge you to stay calm. Be the great
American people that — that I know you are, and just know that we’re — we’re in
here fighting for you.

(Exhibits R-1, R-4; Testimony of Rep. Greene, Tr. 222:17-24).

36. After order was restored in the Capitol, Congress reconvened and ultimately certified the

results of the Electoral College vote at approximately 3:40 a.m. on January 7, 2021. (Stipulation

¶ 9; Exhibit P-36).

37. Rep. Greene filed her candidacy for the upcoming midterm elections for Georgia’s 14th

Congressional District on March 7, 2022. She filed an amended notice of candidacy on March 10,

2022. (Stipulation ¶ 10).

38. Two weeks later, on March 24, 2022, Challengers filed an official challenge to Rep.

Greene’s qualifications to serve as a member of Congress with the Georgia Secretary of State’s

office pursuant to O.C.G.A. § 21-2-5.

39. The parties acknowledge that the ballots for the May primary at issue in this matter have

been printed. Rep. Greene’s name is on the printed ballot.3

40. In her testimony at the hearing of this matter, Rep. Greene denied having advance

knowledge of the Invasion, or that she was in any way involved in its planning or execution.

(Testimony of Rep. Greene, Tr. 142, 170:15-17, 171:10-11, 180–82, 204–07, 209, 226–27). She

testified that she was unaware of activities by certain persons involved in the Invasion. (Id., Tr.

142, 170:15-17, 171:10-11, 180–82, 204–06). She testified that she did not know that “1776” was

being used by some of the persons who invaded the Capitol as a “code word” for a violent attempt

to stop the Congress from proceeding with certification of the results of the 2020 presidential

election. (Id. Tr. 168:11-12, 170:15-17, 171:10-11). She testified that her references to “1776” or

“this is our 1776 moment” in the Newsmax Interview or other statements made after taking the

3
See Greene v. Raffensperger, No. 22-cv-1294-AT, 2022 U.S. Dist. LEXIS 70961, at *8 (N.D. Ga. Apr. 18, 2022).

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oath were references to her efforts to lawfully challenge electoral votes on January 6, 2021. (Id.,

Tr. 168:11-12). Her calls for supporters to come to Washington, D.C., she asserted, were intended

to invite them to attend peaceful demonstrations, and not meant to induce them to engage in violent

behavior. (Testimony of Rep. Greene, Tr. 91:16-20).

IV. Conclusions of Law

A. The Burden of Proof

In the April 13 Order, the undersigned ruled that the burden of proof in this matter must

be placed upon Challengers, noting that, in the interests of justice, Rep. Greene should not be

required to “prove a negative” and affirmatively establish she did not engage in an insurrection.

Ga. Comp. R. & Regs. 616-1-2-.07(2). Therefore, Challengers had the burden of establishing that

Rep. Greene is disqualified. To do so, they were required to prove, by a preponderance of the

evidence, that Rep. Greene, having “previously taken an oath as a member of Congress . . . to

support the Constitution of the United States . . . engaged in insurrection or rebellion against the

same, or [gave] aid or comfort to the enemies thereof” under the 14th Amendment to the

Constitution. Ga. Comp. R. & Regs. 616-1-2-.21(4).

B. Elements of the Disqualification Clause

To prove that the Disqualification Clause bars Rep. Greene’s candidacy, Challengers must

show that:

(i) after Rep. Greene took an oath to defend the Constitution

(ii) she engaged

(iii) in insurrection against the Constitution.

See U.S. CONST. amend. XIV, § 3.

C. The Oath

The parties have stipulated that the first time Rep. Greene took an oath to defend the

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Constitution was January 3, 2021, when she was sworn in as a member of Congress. Therefore,

only conduct by Rep. Greene occurring after taking that oath on January 3, 2021, is relevant in

determining whether the Disqualification Clause applies. See U.S. CONST. amend. XIV, § 3.

Similarly, statements made by Rep. Greene and actions taken by her prior to her taking of the oath

on January 3, 2021, are only relevant, and can only be considered, to the extent they explain her

conduct occurring after the taking of the oath. In other words, conduct prior to January 3 may not,

standing alone, disqualify Rep. Greene, but may be used to show that conduct after January 3

amounted to “engag[ing] in insurrection or rebellion.”

D. “Engage”

There appear to be two judicial opinions that have considered the meaning of the word

“engage” as used in the Disqualification Clause. See United States v. Powell, 65 N.C. 709 (1871)

(defining “engage” as “a voluntary effort to assist the Insurrection . . . and to bring it to a successful

[from insurrectionists’ perspective] termination”);4 Worthy v. Barrett, 63 N.C. 199, 203 (1869)

(defining “engage” as “[v]oluntarily aiding the rebellion by personal service or by contributions,

other than charitable, of anything that was useful or necessary”).5

It appears that it is not necessary that an individual personally commit an act of violence

to have “engaged” in insurrection. See Powell, 65 N.C. at 709 (defendant paid to avoid serving in

Confederate Army); Worthy, 63 N.C. at 203 (defendant simply served as county sheriff). Nor does

“engagement” require previous conviction of a criminal offense. See, e.g., Powell, 65 N.C. at 709

(defendant not charged with any prior crime); Worthy, 63 N.C. at 203 (defendant not charged with

any crime); In re Tate, 63 N.C. 308 (1869) (defendant not charged with any crime); Gerard N.

Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT. 87,

4
See also United States v. Powell, 27 F. Cas. 605, 607 (C.C.D.N.C. 1871).
5
The Worthy-Powell standard appears to provide the only judicial construction of “engage” under the Disqualification
Clause. See also In re Tate, 63 N.C. 308 (1869) (applying Worthy).

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98–99 (2021) (in special congressional action in 1868 to enforce Section Three and remove

Georgia legislators, none of the legislators had been charged criminally).6

Rep. Greene points to the use of word “engage” in a similarly-worded 1867 statute with

more severe consequences (disenfranchisement) than the Disqualification Clause. The then

Attorney General construed that statute to require “some direct overt act, done with the intent to

further the rebellion.” 12 Op. Att’y Gen. 141, 164 (1867). The authority does not indicate that a

prior criminal conviction is necessary to trigger the Disqualification Clause.

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”).

Challengers argue that Rep. Greene’s speeches, texts, tweets, and appearances evidence a

long-term plan to foment an insurrection on January 6 in order to prevent Congress from

completing its Constitutional duties in certifying the election of President Biden. Under

Challengers’ view of the evidence, Rep. Greene was planning and furthering insurrection long

6
Rather than require a criminal conviction as a prerequisite to a civil action to disqualify an officeholder, Congress
did the reverse and imposed criminal penalties for those who held office in defiance of the Disqualification Clause.
See Act of May 31, 1870, ch. 114, § 15, 16 Stat. 140, 143.

14
before she took office. This plan, they contend, began as soon as it was clear that President Trump

would lose the 2020 election. Under Challengers’ view of the evidence, the January 6 Invasion

was “Plan B,” to be triggered when efforts to object to the Electoral College votes and to persuade

Vice President Pence to refuse the certification of President Biden failed. Petitioners’ Post-

Hearing Brief, pp. 11-16; Tr. 273.

The difficulty with Challengers’ theory is the lack of evidence. Whatever the exact

parameters of the meaning of “engage” as used in the 14th Amendment, and assuming for these

purposes that the Invasion was an insurrection, Challengers have produced insufficient evidence

to show that Rep. Greene “engaged” in that insurrection after she took the oath of office on January

3, 2021. In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers

presented no persuasive evidence Rep. Greene took any action—direct physical efforts,

contribution of personal services or capital, issuance of directives or marching orders,

transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or

after January 3, 2021.

There is no evidence to show that Rep. Greene participated in the Invasion itself. To the

contrary, the evidence shows that she was inside the Capitol building at the time, and unaware of

the Invasion until proceedings were suspended at approximately 2:29 p.m. on January 6, 2021.

Further, there is no evidence showing that after January 3, 2021, Rep. Greene

communicated with or issued directives to persons who engaged in the Invasion. Challengers point

to Rep. Greene’s apparent prior contact with certain persons, such as Anthony Aguero. They point

to postings from various persons, such as Ali Alexander. But the evidence does not show that Rep.

Greene was in contact with, directed, or assisted these individuals, or indeed anyone, in the

planning or execution of the Invasion. Rep. Greene denies any such contact or involvement and

that denial stands unchallenged by other testimony or documentary evidence.

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 Challengers make a valiant effort to support inferences that Rep. Greene was an

insurrectionist, but the evidence is lacking, and the Court is not persuaded. The evidence shows

that prior to January 3, 2021, Rep. Greene engaged in months of heated political rhetoric clothed

with strong 1st Amendment protections. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908

(1964); see also Brandenburg v. Ohio, 395 U.S. 444 (1969). The evidence does not show Rep.

Greene engaged in months of planning and plotting to bring about the Invasion and defeat the

orderly transfer of power provided for in our Constitution. Her public statements and heated

rhetoric may well have contributed to the environment that ultimately led to the Invasion. (See

Sen. McConnell’s Remarks, P-55). But expressing constitutionally-protected political views, no

matter how aberrant they may be, prior to being sworn in as a Representative is not engaging in

insurrection under the 14th Amendment.

Challengers point to Rep. Greene’s statement during the Newsmax Interview on January

5, 2021, as a literal call to arms to storm the Capitol. Petitioners’ Post-Hearing Brief, pp. 11-12.

The Court finds this to be the only conduct that could even possibly be interpreted as triggering

the Disqualification Clause. If this statement was in fact a coded message from Rep. Greene to

her co-conspirators to go forward with a previously planned incursion into the Capitol, it might

constitute an overt act and one that occurred after she took her oath as Representative. Based on

the evidence, the Court is unpersuaded that Rep. Greene’s ambiguous statement that “[t]his is our

1776 moment” was a coded call to violent insurrection on January 6, 2021. Heated political

rhetoric? Yes. Encouragement to supporters of efforts to prevent certification of the election of

President Biden? Yes. Encouragement to attend the Save America Rally or other rallies and to

demonstrate against the certification of the election results? Yes. A call to arms for consummation

of a pre-planned violent revolution? No. It is impossible for the Court to conclude from this

vague, ambiguous statement that Rep. Greene was complicit in a months-long enterprise to

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obstruct the peaceful transfer of presidential power without making an enormous unsubstantiated

leap.

This case, like all cases in all legal proceedings, must be decided based upon the evidence

adduced at the hearing. It is true that absence of evidence is not evidence of absence. But the

absence of evidence supporting Challengers’ case means that they have failed to meet their burden

of proof and establish that Rep. Greene engaged in insurrection at some time after taking her oath

on January 3, 2021. This matter must be decided based upon a preponderance of admissible

evidence. One ambiguous statement on January 5, 2021, which appears to be the only direct post-

oath evidence supporting Challengers’ case, is simply not enough. Challengers have failed to meet

their burden of proof.

E. Insurrection

The parties and the Court agree that the actions of the participants in the Invasion were

despicable. The parties strongly disagree, however, as to whether the Invasion constituted an

“insurrection” within the meaning of the 14th Amendment. They proffer competing definitions of

the meaning of the term “insurrection” as used in the 14th Amendment and whether the events of

the Invasion meet those definitions.

The events that occurred on January 6, 2021, are truly tragic. Multiple lives were lost,

including those of law enforcement officers who died defending the Capitol. Many sustained

injuries, some of them permanent and life-changing. The citadel of democracy, the U.S. Capitol,

was violently breached in the most serious incursion in 200 years. Members of Congress,

including Rep. Greene, were forced to take shelter for several hours to avoid the wrath of the

invaders. Congress was unable to perform its obligations under the 12th Amendment to the

Constitution. It is among the saddest and most tragic days in the history of our American Republic.

The well documented images of the events of the day are painful in the extreme.

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 Whether the Invasion of January 6 amounted to an insurrection is an issue of tremendous

importance to all Americans and one that may yet be addressed. However, it is not a question for

this Court to answer at this time. Because the Court finds Rep. Greene did not “engage” in the

Invasion, either as a direct participant or in its planning and execution, after taking her oath on

January 3, 2021, it is not necessary to address the question of whether the events of January 6

constituted an “insurrection” within the meaning of the 14th Amendment.7

F. Constitutional and Other Issues

1. Constitutional Claims

The Constitution, including the 14th Amendment, is the Supreme Law of this country and

is binding on every court and every government agency. Likewise, acts of Congress, including

the Amnesty Act of 1872, are the law of the land by virtue of the Supremacy Clause. Like any

court, OSAH judges are required to follow and apply the Constitution and applicable Federal law,

and regularly do so in their decisions. If a Georgia statute or regulation is inconsistent with the

Constitution, the OSAH judge may make findings of fact to that effect.

An OSAH judge is not permitted to invalidate or decline to follow a statute based upon a

finding that it is unconstitutional. An OSAH judge is, however, permitted to develop the record

as to relevant issues of constitutional validity and make findings of facts as to those issues. Ga.

Comp. R. & Regs. 616-1-2-.22(3). Any constitutional objections that cannot be addressed by the

undersigned are preserved and may be considered by the Secretary of State in his decision to

accept or reject this Initial Decision, and by reviewing courts on appeal.

Rep. Greene has made and properly preserved various objections, including constitutional

7
See, e.g., Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir. 1989) (“Principles of judicial restraint dictate that if
resolution of an issue effectively disposes of a case, we should resolve the case on that basis without reaching any
other issues that might be presented.”); Sunbelt Plastic Extrusions v. Paguia, 360 Ga. App. 894, 899 (2021) (“When
‘we are able to decide [a] case on a narrower basis, we do not reach the broader issues.’” (quoting Crenshaw v.
Crenshaw, 267 Ga. 20 (1996))).

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 objections, to this proceeding and the conduct of the hearing. These were initially identified in

her “Motion to Dismiss” filed on April 1, 2022, renewed in her “Motion to Request Ruling on

Constitutional Objections and Incorporated Brief in Support” filed on April 11, 2022, and

enumerated again in her post-hearing brief filed on April 29, 2022. Rep. Greene’s objections are

noted, have been properly raised, and have been preserved for appeal.

2. The Amnesty Act of 1872

Because the Court has determined the Disqualification Clause does not apply, it is not

necessary to address Rep. Greene’s arguments concerning the 1872 Amnesty Act.8

V. Decision

The burden of proof in this matter is on Challengers. Challengers have failed to prove their

case by a preponderance of the evidence. The evidence in this matter is insufficient to establish

that Rep. Greene, having “previously taken an oath as a member of Congress . . . to support the

Constitution of the United States . . . engaged in insurrection or rebellion against the same, or

[gave] aid or comfort to the enemies thereof” under the 14th Amendment to the Constitution.

Therefore, the Court holds that Respondent is qualified to be a candidate for Representative

for Georgia’s 14th Congressional District.

SO ORDERED, this 6th day of May, 2022.

Charles R. Beaudrot
Administrative Law Judge

8
See FN 6, supra.

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