It took less than a day after a grand jury in Fulton County, Georgia indicted former president Donald Trump, his former chief of staff Mark Meadows, and 17 other defendants in a sprawling racketeering case for one of them to invoke a rarely used federal law in an attempt to move the case into federal court.
On 15 August, attorneys for Mr Meadows, who is charged with a single racketeering count and another sole count of solicitation of violation of oath by a public officer, quickly filed papers in federal court to “remove” the case from Fulton County Superior Court.
The move by the former president’s chief of staff was widely expected by legal experts, many of whom have opined that Mr Trump’s legal team can be expected to use a similar manoeuvre within the next 30 days, citing his former position as president of the United States.
Several other defendants in the case have attempted to invoke the same federal law to pull the charges against them out of Fulton County courts, including Jeffrey Clark, the ex-Justice Department official who schemed to help Mr Trump overturn the election with the help of the federal government’s law enforcement apparatus, and several of the Georgia Republicans who signed forged electoral certificates that were sent to the National Archives: Cathy Latham, David Shafer and Sean Still.
But removing the case to federal court would not necessarily provide either of them with an advantage should the case proceed to trial.
Although removing a case to federal court places it under the jurisdiction of a federal district judge, it would not turn it into a federal criminal matter that could be resolved by presidential pardon were Mr Trump or a like-minded Republican to win the presidency in next year’s general election.
Responsibility for prosecuting the case would still rest with Fani Willis, the Fulton County district attorney who has overseen the wide-ranging two-and-a-half year probe into efforts by Mr Trump and his allies to unlawfully reverse his 2020 election loss to Joe Biden.
Nor would removal give Mr Trump or Mr Meadows the advantage he might gain from a friendly jurist on the bench. Mr Meadows’ removal action was assigned to Judge Stephen Jones, a 12-year veteran of the federal bench who was nominated to the court by then-president Barack Obama in 2011.
Because of rules requiring related cases to be heard by the same judge, Judge Jones would also be assigned any removal action by Mr Trump.
Mark Meadows.— (Copyright 2020 The Associated Press. All rights reserved.)
The only conceivable advantage for the ex-president and his former confidante would come at trial, when the federal court would draw a jury pool from the entire Northern District of Georgia – an area encompassing both urban, suburban and rural areas – rather than the heavily Democratic jury pool found in Fulton County courts.
Yet Mr Trump and Mr Meadows appear to be ready to advance an argument for the case to be thrown out because they were acting under the colour of federal authority and therefore immune from prosecution for the events at issue in the indictment brought by Ms Willis’ office.
In Mr Meadows’ court filing, the ex-White House chief of staff’s attorneys said the charges against him, which arose out of his and former president Donald Trump’s efforts to keep him in office against the will of voters by pressing Georgia officials to overturn the election results after Mr Trump lost there to Joe Biden, including during a phone call on which Mr Trump asked Georgia Secretary of State Brad Raffensperger to “find” non-existent votes and reverse the election results, were part of his official duties as an executive branch staffer.
Mr Meadows, who the indictment alleges to have participated in a criminal enterprise by arranging the phone call between the then-president and Mr Raffensperger, wants the federal court to take jurisdiction over the charges so they can be dismissed under the US constitution’s supremacy clause.
“Mr Meadows has the right to remove this matter. The conduct giving rise to the charges in the indictment all occurred during his tenure and as part of his service as Chief of Staff,” his lawyers said.
They also argued that nothing the ex-chief of staff has been accused of is in and of itself a crime.
“Nothing Mr Meadows is alleged in the indictment to have done is criminal per se: arranging Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President. One would expect a Chief of Staff to the President of the United States to do these sorts of things,” they wrote, adding later that the charges against him are “precisely the kind of state interference in a federal official’s duties that the Supremacy Clause of the U.S. Constitution prohibits”.
Such situations are rarely encountered in federal courts, but in 2021 a pair of US Park Police officers successfully sought to dismiss manslaughter charges that had been brought against them by a local prosecutor in Virginia following an on-duty shooting for which the Justice Department declined to prosecute them.
Senior US District Judge Claude M. Hilton ruled that the officers were entitled to immunity from prosecution by state authorities because their actions were “necessary and proper” and were part of their official duties.
If Judge Jones were to accept such an argument, the case would be thrown out with little recourse left to Ms Willis but to appeal to a circuit court — and a Supreme Court — stacked with Mr Trump’s appointees.
Andrew Fleischman, a Georgia-based defence lawyer, said in a phone interview that Mr Meadows might have a legitimate chance to argue for dismissal because of the limited scope of the allegations against him as detained in the indictment, and because Mr Meadows was carrying out duties assigned by the president during his service as chief of staff.
But Norm Eisen, a senior fellow at the Brookings Institution, told The Independent that it’s unlikely that either Mr Trump or Mr Meadows could successfully move for the case to be dismissed under the supremacy clause because the actions at issue in the Georgia case were part of Mr Trump’s efforts to win re-election — not his official duties as president.
Mr Eisen noted that a district court in Washington DC has already ruled on a similar argument by Mr Trump as part of a civil lawsuit brought by members of Congress over the ex-president’s role in the January 6 attack on the Capitol.
He told predicted that the efforts by Mr Trump and Mr Meadows to toss the case on supremacy clause grounds would fail.
“An attempted coup is just as remote from the Presidential official job duties under the Constitution as fabricating documents to cover up hush money payments that help you get to the White House. Both are unrelated to presidential duties,” he said.
