Federal Judge Orders 2nd Hearing Removing Georgia Election Case

Former acting Assistant Attorney General Jeffrey Clark testifies during a Jan. 6, 2021, field hearing held by Rep. Matt Gaetz (R-Fla.) in the U.S. Capitol in Washington on June 13, 2023. Michael McCoy/Getty Images

A federal judge has ordered a second evidentiary hearing for removal of the Fulton County case against former President Donald Trump and 18 others over violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act in their challenge of the 2020 election results.

Fulton County District Attorney Fani Willis, who’s prosecuting the case, claimed that the actions constituted a “criminal racketeering enterprise” and gave the 19 defendants until noon on Aug. 25 to surrender or face arrest. All defendants surrendered before the deadline.

Jeffrey Clark, a former Department of Justice (DOJ) official, filed a notice of removal on Aug. 21, requesting that his case be moved from state to federal court, where he’s expecting the charges to be dismissed. A request to expedite the process before the arrest deadline was denied by Judge Steve Jones of the U.S. District Court for the Northern District of Georgia, who will oversee the hearings related to removals.

The hearing will take place on Sept. 18, and the district attorney’s office has until Sept. 5 to file a response.

The indictment accuses Mr. Clark of violating the RICO Act, as well as allegedly making a false statement when he issued a DOJ statement alerting Georgia officials to election fraud concerns. He’s arguing that he acted as a federal official and thus “asserts federal jurisdiction” in the case.

“The Court now must determine if it clearly lacks subject matter jurisdiction over Clark’s removal action, which would require summary remand,” Judge Jones wrote, noting that he isn’t commenting on the assertions at this time but expects to hear arguments from both sides at the Sept. 18 hearing.

4 Notices of Removal

Notices of removal must be filed no later than 30 days after arraignment or anytime before trial, whichever is earlier. Besides Mr. Clark, three other defendants have filed notices of removal.

Mark Meadows, former chief of staff to President Trump, was the first to do so on Aug. 15, a day after the indictment. An evidentiary hearing will take place on Aug. 28.

Ahead of the hearing, Ms. Willis and lawyers for Mr. Meadows have filed responses that give a preview of their arguments. Ms. Willis is arguing that Mr. Meadows’s actions weren’t the actions of a federal officer but that in fact he neglected the duties of his federal office and participated in illegal political activity under the Hatch Act. Mr. Meadows’s lawyers argued that the political or election-related nature of Mr. Meadows’s actions don’t disqualify them from being part of federal conduct.

“The only dispute the State asserts here is whether Mr. Meadows is entitled to immunity based on the nature of the conduct charged and the scope of his duties,” his lawyers wrote, arguing that even if there’s something disputable about Mr. Meadows’s actions, they still don’t fall under state court jurisdiction.

The district attorney’s office has subpoenaed four witnesses to testify in the Aug. 28 hearing: Georgia Secretary of State Brad Raffensperger; Frances Watson, chief investigator for the Georgia Secretary of State’s office; and attorneys Kurt Hilbert and Alex Kaufman.

Mr. Meadows was accused of arranging or taking meetings and phone calls involving the subpoenaed witnesses, and Ms. Willis is expected to ask them to recount the alleged meetings and calls.

David Shafer, an alternate elector in the 2020 general election in Georgia and former chair of the Republican Party in Georgia, also filed a notice of removal. He argued that the alternate elector position was legitimized by an act of Congress and that therefore he can claim federal immunity as well. He also argued that, because he was working “at direction” of President Trump and the president’s lawyers,' he would at minimum qualify for acting under the color of a federal officer if not considered one himself.

On Aug. 24, Shawn Still, a Georgia state senator and also an alternate elector during the 2020 election, filed the latest notice of removal.

“The prosecution of Mr. Still is based on his attendance at a single meeting on December 14, 2020, in his capacity as a contingent United States presidential elector,” where, his attorneys argued, he “was, or was acting under, an officer of the United States.”

The notice claims that Mr. Still—and Mr. Shafer—followed procedure and the advice of the president’s attorneys in their actions to cast the alternate ballots. For this, Mr. Still was charged with eight counts, all tied to the Dec. 14, 2020, meeting where he cast his ballot.

Similar to the arguments made in the previous notices of removal, his lawyers are making additional arguments that the First, Fifth, and 14th Amendments should further protect Mr. Still from these charges.

“Mr. Still attended a meeting with other contingent electors and cast a ballot in accordance with the instructions from legal counsel,” his lawyers wrote. “Such conduct clearly constitutes political expression, association, and expressive conduct protected by the First Amendment.”

Rudy Giuliani, who served as an attorney to President Trump during the period named on the indictment, has said that he plans to file a notice of removal as well.

Many have speculated as to whether President Trump would do the same, given that a president can’t pardon a state conviction but only a federal one.

“The Fulton County District Attorney, they’re going to fight this [removal] tooth and nail, for the simple reason that they want to get as much publicity as possible, and they want to keep this local. But I do believe this is a federal case,” criminal defense attorney David Gelman told NTD. “These RICO charges that are being brought against the president are RICO statutes even though the Fulton County DA did bring them in state court. This really is a federal case.”

President Trump’s attorney Steven Sadow, an Atlanta-based criminal defense lawyer known for representing high-profile clients, declined to comment.

“I will not be disclosing my defense strategy or tactics to the media in advance,” Mr. Sadow said.