An 11th Circuit Court of Appeals panel heard arguments on Friday regarding former chief-of-staff Mark Meadows’s attempt to move his case out of Georgia state court to federal court, where he would seek dismissal under a federal immunity defense.
Mr. Meadows had been an aide for former President Donald Trump with whom he was indicted in a Georgia racketeering case that originally accused 19 individuals of interfering with the 2020 presidential election results. He had promptly sought removal after the indictment was handed up, but a federal judge had remanded the case back to state court.
One issue being debated is whether the acts of racketeering that name Mr. Meadows were taken as a federal officer or not. Defense attorney George James Terwilliger III argued that the federal removal statute does not require Mr. Meadows to define the “outer limits” of his office, as one judge suggested, but that case precedent requires the officer seeking removal to show that the measure of his conduct was within the nexus of his office.
The racketeering acts involving Mr. Meadows include things from setting up meetings for the president to trying to visit a Georgia ballot recount site himself but ultimately being denied access.
Chilling?
While removal has been used for those who are currently federal officers, Mr. Terwilliger argued that to assume that removal was no longer an option once an administration ended or an official stepped down would create a “chilling effect.”It would open federal judges who left the bench or members of Congress who finished their terms up to immediate prosecution in states where their policies or rulings were unpopular, he argued.
Mr. Terwilliger added that he had served as a cabinet officer himself and certainly would have behaved differently if he knew he had state prosecutions hanging over him after he stepped down.
The judges pointed out that he could have been prosecuted in state jurisdictions anyway, and Mr. Terwilliger answered that he could have promptly removed those cases to federal court where they would have been dismissed.
The judges turned the chilling question to Georgia state attorney Francis McDonald Wakeford, arguing for Fulton County prosecutors.
He pointed to a recent federal court decision by U.S. District Court Judge Tanya Chutkan in an opinion elaborating on the gag order she imposed on President Trump, where sometimes chilling should happen.
The appellate judges interrupted his answer to present a hypothetical. If, upon the change of administration, the entirety of the former president’s administration was indicted in multiple states the day they leave office, for their official duties, because the administration’s policies were unpopular in certain states, wouldn’t that create a chilling effect?
“That doesn’t happen, it hasn’t happened,” Mr. Wakeford said.
He answered that if the removal statute really required a change in language, lawmakers would do so. Mr. Terwilliger had said much the same, as the statute covers members of Congress as well.
Mr. Wakeford added that the reason it hasn’t happened is also because such a hypothetical would be an “abuse of prosecutorial discretion,” which state courts would still recognize and stop in its tracks.
One of the judges emphasized that if it was the case that removal wasn’t an option for former officers, in those cases where there is an abuse of prosecutorial discretion there is no recourse for those former officers in federal court unless they get lucky and the U.S. Supreme Court agrees to review the case.
Mr. Wakeford argued that the purpose of the statute is to protect federal authority, and in Mr. Meadows’s case there was “no federal authority to protect.”
