Marjorie Taylor Greene doesn’t remember anything and you can’t prove she does
Greene's painful, day-long effort to avoid perjuring herself, explained to me by Ron Filipkowski.
On Friday, Marjorie Taylor Greene gave sworn testimony in a case seeking to remove her from the ballot later this year. It quickly turned into a social media spectacle, complete with a lowlight reel of her saying “I don’t remember” over and over again in response to questions about her role in the January 6 insurrection.
Questioners caught Greene in lies …
… and, when she was grilled about social media posts apparently endorsing violence against prominent Democrats, Greene ending up having to pretend she had no idea what had happened on her own Facebook page.
I’d say the hearing damaged Greene’s credibility, but she didn’t really have any to begin with. And while Greene’s efforts to distance herself from, well, herself may have been absurd, there was clearly a strategy behind them: She was trying to avoid falling into perjury traps set by lawyers representing the group of voters who are seeking to bar her from the ballot.
At issue is the 14th Amendment, which bars anyone who has “engaged in insurrection or rebellion” from running for a House or Senate seat. The argument is that Greene’s role in Trump’s coup attempt fits the bill, and there’s something to that. In the days leading up to the January 6 insurrection, Greene encouraged her followers to refuse to accept the transfer of power to Biden (“You can't allow it to just transfer power 'peacefully' like Joe Biden wants, and allow him to become our president,” she said in a video), promoted Trump’s lies about election fraud, and ultimately voted against accepting the election results.
But Ron Filipkowski, a Florida-based lawyer and prominent online documenter of the far right, who served as legal counsel for many Republican campaigns before he became a Democrat, told me he thinks Greene would probably have to be charged with an insurrection-related crime before a judge would prevent her name from appearing on a ballot.
“I think it shows what Merrick Garland understands, which is that in a conspiracy case, it's very difficult to get to the smart people at the top who cover their tracks, who, as they say in the Godfather, put buffers between them and the wrongdoers,” he said. “Especially in the political sense, where you do have the First Amendment, and political speech is, under the law, the most protected speech there is.”
I spent about 15 minutes talking with Filipkowski about Greene’s perjury-avoidance tricks, the parts of her testimony that could potentially put her in legal jeopardy, and the broader lessons to be learned from Friday’s hearing about efforts to hold the January 6 conspirators to account. A transcript of our conversation, lightly edited for clarity and length, follows.
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Aaron Rupar
Did you think heading in that there was at all a realistic chance that she would be barred from the ballot, and did your view on that change at all because of the hearing?
Ron Filipkowski
No to both. I think that everybody involved — the judge, the defense, and the prosecutor of the case — I think they all knew that. The feel I got from watching the hearing was, we have to go through this because it's been filed and [Amy] Totenberg, the federal judge, is making us do this. I think the judges have pretty much thrown these out everywhere else. They've been tried all over the place, but this is the first one that's been ordered to proceed. So yeah, I kind of got the feeling like, Ron Fein [the lawyer questioning her], what was he doing? He was trying to set her up for perjury. It was obvious the style that he was using to ask the questions was just one perjury trap after another. It was obvious her lawyer went into that hearing with the specific objective of avoiding perjury, because everything he did and she did was designed to avoid perjury.
Aaron Rupar
What were Greene’s perjury-avoidance tricks, and do you think they were successful?
Ron Filipkowski
This is something I've dealt with as a lawyer thousands of times, where you know that somebody has something incriminating and you want to try to explain it, but you don't want to directly contradict what they have. She went to the memory thing. She just kept saying, “I don't remember. I don't remember. I don't remember if I posted that.” And that was her answer. She probably said that 500 times. So if you directly say “No, I didn't say that,” obviously, and it's on video, then they got you. So her strategy was to shift it to “I don't remember anything.”
So now, to be prosecuted for perjury, it makes it a lot more difficult because you pretty much have to prove that she is lying about not remembering. And I think you could make that case, certainly, but it's more difficult, because what she could then use is her other tactic, which was to attack every piece of evidence that they had on authentication. In other words, most of the stuff that they played was stuff that she had posted and deleted, but people like us had grabbed off of those places before she deleted them. The problem with that is a lot of those were edited and cut by different media outlets. So what [a lawyer questioning her] had to use was edited and cut and spliced stuff, because that's all that exists right now and she deleted all the originals. That was her other tactic — to say, “well, I don't know what that is. That's been edited. That’s not the full clip.” Of course it's not, but it doesn't change the fact that what she said in the non-edited parts is pretty damning.
Aaron Rupar
What would it take for prosecutors to prove an insurrection case like this?
Ron Filipkowski
Probably a criminal charge. Probably something like that, where she was indicted. That was her lawyer’s consistent theme. He argued two things: He argued she's never been charged — she said it repeatedly on the stand — and the First Amendment was another big part of his argument. Which is, this is all protected free speech, everything she said is First Amendment-protected, not inciting an insurrection.
The problem is trying to find a direct link between her and the people that stormed the Capitol. He asked her, specifically, had she had any communications whatsoever with anyone storming the Capitol while it was happening? And she said no. Now, of course, if those text messages or phone calls, if the [January 6] committee has something like that, then that would definitely be perjury. Because that question she answered very clearly, no.
I think it would have to be something like that, like a direct link between her and Oath Keepers or her and Proud Boys like Aguero. They asked her specifically about Anthony Aguero, who is definitely a close friend of hers — although she tried to downplay that relationship — but he went into the Capitol. They tried to ask her, were you in communication with Aguero? And she denied that also. So that's another thing that could be a perjury trap if something like that exists, a text message or something.
Aaron Rupar
And the committee has been very strategic about releasing them. So stay tuned.
Ron Filipkowski
Yeah, that was the one thing that she definitively denied — being in direct contact with any of the rioters.
Aaron Rupar
Do you think Greene did a good job keeping herself out of trouble on the stand?
Ron Filipkowski
She probably overdid it. It was just so obvious. She didn't need to say she doesn’t remember anything. She could have just said, “You know what? I put out hundreds of videos. This was three years ago, I don't know the whole context of it. I haven't seen this in three years.” But instead she just said, “I don't remember. I don't remember.” She could have rephrased things.
If you noticed, when her attorney was objecting, he was giving her the answers that he wanted her to give. That was a strategic way that he was objecting, and he got away with it because there was no jury. In other words, what he was doing is speaking objections. Normally you'd just say, “Objection, hearsay. Objection, leading.” But he would object and give a speech. And the only reason why he got away with that was because there was no jury. But in those speeches, he was telling her what to say. He would go, "Objection, judge, how could she possibly remember this? This was three years ago, and this is protected by the First Amendment.” And he would go "Overruled." But then Greene answered what he just said. So he was feeding her the answers through his objections, which normally wouldn't be allowed.
Aaron Rupar
Does that reflect poorly on the judge, that he allowed that to happen?
Ron Filipkowski
What I saw was that he was a completely different judge in the morning session than he was in the afternoon session. I think initially he wasn't prepared for, or didn't anticipate, what her lawyer was going to do — just object to every single question, give a 10 minute speech with every objection. He literally objected to every question in the morning session and the judge was kind of taken aback and I thought, okay, this is going to be another Lance Ito in the OJ trial where the defense lawyers are going to take over the courtroom.
But then when he came back from lunch, he was a totally different judge. He shut all that down. I think it was just that he wasn't really anticipating the defense lawyers were going to do that. And he had lunch and thought about it and came back and said, this hearing, I'm not going to let this turn into a circus. I'm going to shut this down.
Aaron Rupar
Where does this case go from here?
Ron Filipkowski
The judge told them to submit briefs by Thursday of their legal arguments based on the testimony and evidence that was presented at the hearing. And then he said he understands that the election is right around the corner and he's got to make a ruling fast. He said he would make his ruling one week after they submitted briefs.
Aaron Rupar
Are there any broader lessons to be taken from Friday’s hearing about the so far not very successful efforts to hold people accountable for January 6?
Ron Filipkowski
I think it shows what Merrick Garland understands, which is that in a conspiracy case, it's very difficult to get to the smart people at the top who cover their tracks, who, as they say in the Godfather, put buffers between them and the wrongdoers. Especially in the political sense where you do have the First Amendment, and political speech is, under the law, the most protected speech there is.
Her two defenses were, number one, political speech, number two, the Constitution allows us to object to the counting of the ballots, and that's all I was doing. I was fulfilling my role, my duty as a member of Congress. The lesson is I understand why no one's been charged because it's really, really difficult.
The other thing that people don’t understand is that the J6 Committee is not criminal, so they're able to obtain all of this stuff because 5th Amendment doesn't apply. But a lot of this stuff they're gathering is not necessarily going to be admissible in criminal court, such as text messages obtained over their objections and things like that. These aren't criminal subpoenas, they're just congressional subpoenas. A lot of people aren't really factoring that in either. And that’s another problem.
So, it sounds like all the 1/6 cohorts were well-schooled in how to use the Constitution for protection in their attempt to stop the peaceful transition of power. We are hoisted on our petard: Free Speech.
I am not so sure they will fail the next time. They see that even the MTG's of the world can say anything, do anything without any real consequences.
UGH.
"I don't remember. is the go-to defense in the Republican party. I call it the Jeff Sessions defense.