Former White House chief of staff Mark Meadows recently petitioned to move the racketeering case against him from state court in Fulton County, Georgia to federal court. An evidentiary hearing has been granted for August 28th. This request raises several issues concerning Meadows and former President Donald Trump, as they are accused of conspiring to overturn the results of the 2020 presidential election. Meadows will need to present evidence justifying the removal of the case during the hearing.
Although all 19 defendants, who face a total of 41 counts, are charged with state law violations, a federal statute allows defendants in certain circumstances to “remove” the case to federal court. The reason behind this statute is to protect individuals who worked for the federal government, either directly or indirectly, from being sued or prosecuted for actions performed while working in their capacity as a federal officer or under the direct control and supervision of a federal officer.
The American Bar Association (ABA) explains that the statute was designed to protect federal operations from interference that could arise if states were allowed to prosecute state officials for their official federal duties. Therefore, federal officials are at least guaranteed a federal court and jury to hear their case.
If the case is removed, the criminal indictment will still be brought under state law, but the defendants will be tried in a federal courtroom with a federal judge. If convicted, Meadows and the other defendants will be sentenced under state law, and their sentences will not be eligible for federal pardon.
The motive behind seeking removal to federal court, in the case of Meadows and possibly other defendants, may simply be jury-shopping. Legal scholars Laurence H. Tribe, Donald Ayer, and Dennis Aftergut explain in an article for The Atlantic that by moving their case to federal court, defendants can have access to a jury pool drawn from the entire Northern District of Georgia, rather than just Fulton County, which leans more towards the Democratic party.
Defendants seeking removal may also believe that a state court prosecutor would be at a disadvantage in a federal courtroom, or they may prefer that the judge conduct the voir dire interview of prospective jurors (as is done in federal court) rather than the attorneys (as is done in state court).
However, if Meadows believed he would get a more favorable judge, he might be disappointed. If the case is removed, state court Judge Scott F. McAfee, appointed by Republican Governor Brian Kemp earlier this year, would be replaced by seasoned U.S. District Court Judge Steve C. Jones, appointed by President Barack Obama. So, Meadows might have preferred to take his chances with McAfee if he believes in the idea of “Trump” judges and “Obama” judges.
Regardless, Meadows’s attempt to move the case to federal court may fail. The relevant statute, U.S. Code 28 Section 1(a), only allows removal if the defendant was an officer or acted under the direction of a federal officer in relation to any act performed in their federal capacity. Neither Trump nor Meadows had any constitutional duties regarding the state certification of Georgia’s election results. The Framers allocated election duties to the states, the electoral college, and Congress, but not the president.
Furthermore, in order to seek removal, a defendant must also demonstrate a “colorable” defense under federal law, such as immunity. In a Supreme Court case from 1989, Mesa v. California, mail truck drivers charged with misdemeanor manslaughter were unable to remove their case to federal court because they lacked a federal defense. The court stated that allowing removal of state criminal prosecutions of federal officers in the absence of a federal question would impose extraordinary burdens on the states.
This is where Meadows and Trump, if he follows Meadows’s lead, are likely to falter. They do not have a viable defense, such as presidential immunity, in their attempt to overturn the 2020 election, as multiple judges have ruled.
Federal Judge Emmet Sullivan in Washington, D.C. stated in November of last year, “If Former President Trump disrupted the certification of the electoral vote count, as Plaintiffs allege here, such actions would not constitute executive action in defense of the Constitution.” Another federal case in Washington, D.C. saw Judge Amit P. Mehta reject Trump’s claim to absolute immunity against civil suits, stating that the President’s actions were unofficial and did not relate to his duties.
In a landmark case in 1982, Nixon v. Fitzgerald, the Supreme Court clarified that any immunity a president might have only applies to conduct within the “outer perimeter” of their duties. Since Trump and his associates had no authority to interfere with Georgia’s election process, their actions fall far outside the “outer perimeter” of their duties, making removal unlikely.
It is unclear whether Trump will pursue the same route as Meadows. The law is ambiguous as to whether all defendants must follow if one defendant’s case is removed to federal court. Trump may believe that judges appointed by Democrats, such as Obama-appointed Judge Jones, will not be fair. He has also shown bias against judges of color, and Jones is an African American judge. Trump will need to decide whether he wants to waste time litigating the removal or avoid Judge Jones altogether.
The precedents in the law are not the only reason why Meadows’s removal request should be rejected. In a broader sense, moving the case would harm the people of Fulton County, where the alleged crimes were committed. They would lose the right to have the case tried in their jurisdiction, with a prosecutor of their choosing, under a judge who will be up for re-election next year, and with a jury of their fellow residents.
We must also consider the context in which this case arises, in a state marred by a long history of voter suppression, racial violence, and segregation. Anthony Michael Kreis, an assistant law professor at Georgia State University, points out that Georgia’s political process was neither free nor fair for most of its history. Multiracial political coalitions were denied recognition, and conservatives resorted to intimidation and political violence to suppress their power.
Essentially, the Fulton County indictment accuses Trump and his allies of engaging in the same offenses that have plagued Georgia’s history. By attempting to overturn the election and focusing on Atlanta, which has a large Black population, Trump and his allies perpetuated racial grievance and authoritarianism. This trial presents an opportunity to redeem Georgia and achieve racial justice for Fulton County residents who were targeted in the election interference and whose votes Trump sought to invalidate.
Judge Jones, who will preside over the evidentiary hearing to decide on the removal issue, should prioritize the interests of these voters in obtaining justice and resisting further attacks on their voting rights. From a legal, historical, and moral perspective, it is imperative to keep the case in Fulton County.
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