Rich, I think the problem with Marjorie Taylor Greene isn’t the principle of disqualifying a candidate — Georgia forbids felons, for example, to stand for office until ten years after completing their sentences, and enforces this — but rather the fact that the effort to disqualify Greene relies on her participation in an “insurrection” when neither she nor anybody else involved in January 6 has been even charged under the federal insurrection statute, much less convicted under it.
There is not much in which to base a legal proceeding against her candidacy.
But as a matter of republican principle, I do not think that it is “trampling on a basic principle of democratic self-government,” as you wrote in Politico, to disqualify people from office on certain grounds, or to disqualify them from voting, as we also do with felons. If anything, the experience of the past 20 years suggests that we should be a good deal more finicky about who is permitted to run for office or to vote. Felon disqualification seems to me eminently sensible. Raising the voting age would probably be a good thing for the health of the republic.
The critical difference here is that a felony conviction results from a criminal trial, which has real standards of evidence and well-established procedure. Unless Joe Biden’s Justice Department decides to actually charge somebody with insurrection, it is difficult to see how there is any legal basis to disqualify someone on insurrection grounds.
I am not even convinced that an administrative judge in Georgia has the authority to hear the case to begin with.
After the Civil War, there were almost 1,000 proceedings against former Confederate officers and agents, along with some of their Indian allies, mostly on charges stemming from what we would now call war crimes or terrorism, but these were conducted by military tribunals — under the “Marshall” [sic] law that so excites the gentlewoman from Georgia. That obviously isn’t an option here.
But, given that only Congress — and not any judge — has the power to remove such a disability, it would seem to me that an act of Congress would be the proper means for imposing the disability to begin with, absent a criminal trial on insurrection charges or some equivalent proceeding. Congress has the power to police itself by expelling members, and this question seems to me to be directly related to that power.
Of course, that would be difficult to achieve. But, for the reasons you explore, it should be difficult.