Donald Trump’s lead defense lawyer notified a judge in Fulton county on Thursday that he could soon seek to remove to federal court the racketeering prosecution charging him with attempting to overturn the results of the 2020 presidential election in the state of Georgia.
The unusual filing, submitted to the Fulton county superior court judge Scott McAfee, said only that the former president “may seek removal of his prosecution”, stopping short of submitting a formal motion to transfer the trial venue.
Trump has been weighing for weeks whether to seek removal to federal court and, according to two people familiar with deliberations, is expected to make a decision based on whether his former White House chief of staff Mark Meadows is successful in his own effort.
The idea with waiting on a decision in the Meadows case, the people said, is to use him as a test. If Meadows is successful in transferring to federal court, the Trump legal team is intending to repurpose the same arguments and follow a similar strategy.
To have the case moved to the US district court for the northern district of Georgia, Trump would have to show that the criminal conduct alleged in the indictment involved his official duties as president – he was acting “under color of office” – and cannot be prosecuted at the state level.
The rationale to seek removal to federal court is seen as twofold: the jury pool would expand beyond just the Atlanta area – which skews heavily Democratic – and a federal judge might be less deferential to local prosecutors compared with judges in the Fulton county superior court.
There is no obligation for a defendant to inform a judge about a hypothetical motion and so, in that sense, Trump’s filing was aimed more at giving notice to the judge who is deliberating on whether all the defendants in the case should be tried at the same time.
A spokesperson for Trump could not immediately be reached for comment.
Last month, the Atlanta-area grand jury handed up a sprawling 41-count indictment against Trump and 18 others, alleging that the former president violated Georgia’s state Rico statute in pursuing a multi-pronged effort to throw out the results of a fair election.
For the moment, two of the defendants, the former Trump election litigation lawyers Kenneth Chesebro and Sidney Powell, are scheduled for trial on 23 October after they both sought a speedy trial. But it remains unclear whether everyone else will also go to trial on that date.
The removal question has major and complicated implications: if Trump or Meadows manages to transfer to federal court, that could upend any trial in Fulton county superior court that had started or finished because of potential jurisdictional issues.
Trump can wait until 30 days after his arraignment – or in this case, his arraignment waiver and not-guilty plea filed on 31 August – to decide whether to seek removal to federal court.
The Trump legal team is almost certain to wait until the last moment to file, the people said, given Trump’s overarching legal strategy with all of his criminal cases is to delay, potentially even beyond the 2024 election for which he is the frontrunner for the Republican nomination.
