A judge is set to rule soon on the first Georgia 2020 election co-defendant’s attempt to move their charges to federal court, a decision that could prove decisive for the future of Fulton County District Attorney Fani Willis’s (D) criminal case.
Former Trump White House chief of staff Mark Meadows wants U.S. District Judge Steve Jones to allow him to switch courts to attempt to get his charges thrown out on immunity grounds. It would also widen the jury pool to less Democrat-heavy areas and likely prevent a televised trial allowed by state law.
If Meadows succeeds, legal experts say it would make it easier for former President Trump, who on Thursday pleaded not guilty to the Georgia charges, to follow in his footsteps.
“If Jones does permit Meadows to remove, it won’t be on the strength of Meadows’s legal argumentation. It will be because of the atmospherics of the case,” said Lee Kovarsky, a law professor at the University of Texas.
“And because it will be because of the atmospherics of the case, it seems likely that he would also permit Trump to remove, notwithstanding the specifics of the legal argument,” Kovarsky added.
Meadows and his 18 co-defendants are charged with racketeering, which enabled prosecutors to weave together an alleged monthslong conspiracy to overturn Georgia’s 2020 election result to help keep Trump in power.
Prosecutors outlined 161 acts they say are part of the conspiracy, and Meadows is mentioned in eight. The list includes meetings with state legislators, Meadows’s attempt to observe a signature match audit during a Georgia trip and calls he set up between state election officials and Trump.
Meadows has disputed the substance of some of the allegations.
In connection with one of those calls — in which Trump asked the state’s top election official to help “find 11,780 votes” — Meadows also faces a count of soliciting a public officer to violate their oath.
He isn’t the first federal official to attempt to move their criminal prosecution, but legal experts say Jones is confronting a novel issue with limited case law.
As Jones mulls his decision, he has signaled some, but not all, of the allegations against Meadows may meet the criteria to proceed in federal court.
It has left Meadows and prosecutors battling over whether that is enough to make the switch.
“[B]ased on the Notice of Removal and the record before the Court, each one of these charged acts has a sufficient connection to Mr. Meadow’s official duties to support removal,” his attorneys wrote in court filings Thursday.
“But based on the black-letter law outlined above, the Court need not reach that conclusion to permit removal. If the Court finds that any charged conduct relates to Mr. Meadow’s official duties, that is the end of the inquiry; removal must be permitted,” they continued.
The legal dispute turns on three prongs: Meadows must show he was a federal officer, that the allegations relate to an act taken “under color of such office” and that he has a plausible federal defense.
Both sides agree Meadows’s White House job means he clears the first prong, but on the last two, they split sharply.
Jones held a hearing last Monday to resolve the dispute. But a day later, he appeared to still have uncertainty, as he asked both sides to submit their views in writing on a singular question.
“Count 1 of the Indictment (pertaining to Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-4(c)) contains a number of overt acts attributed to Mr. Meadows. Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office, be sufficient for federal removal of a criminal prosecution,” Jones asked in the order.
Legal experts said Jones’s request means he seems to think only some of the alleged conduct merits changing courts.
“A judge doesn’t ask for additional briefing unless the judge is thinking that that briefing will be helpful to resolving the motion that is in front of them. So it seems obvious that the judge is at least considering finding that some of the acts fall within the scope of removal,” said Alex Reinert, a professor at the Cardozo School of Law.
Responding to the judge’s inquiry, Meadows and prosecutors unsurprisingly fell on opposite sides.
“The State also cannot avoid removal by charging a mix of removable and nonremovable conduct. Any contrary rule would lead to absurd results; a State could charge even the most quintessential official act and defeat removal by tacking on unofficial conduct,” Meadows’s attorneys wrote.
Willis, on the other hand, said Meadows’s counts should remain in state court, contending the racketeering charge is not because of one specific act in the indictment and is instead over Meadows agreeing to join the broader conspiracy.
“A finding that some of the overt acts attributed to the defendant occurred under color of office would not suffice to show that the defendant’s joining in the conspiracy was itself under color of office or even related to it,” Willis’s office wrote.
Kovarsky, the University of Texas law professor, said even if the judge takes Meadows’s view, he still hadn’t satisfied the third prong of showing a federal defense.
“I don’t know if the strength of the briefing will decide the issue for Judge Jones. But if it does, Willis clearly has the stronger briefing, because Meadows doesn’t explain why he has a colorable defense of Supremacy Clause immunity,” Kovarsky said.
Reinert agreed it would be hard for Meadows to show a federal defense for some of the allegations. But he cautioned that the judge still has room to find removal is proper.
“I think there’s good reason to think that that shouldn’t result in removal,” he said. “But a lot of this world is unexplored.”
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