Numerous Arguments Filed to Remove Georgia Trump Case From State Court

Fulton County Sheriff officers block off a street in front of the Fulton County Courthouse in Atlanta, Ga., on Aug. 14, 2023. Joe Raedle/Getty Images

Multiple codefendants of former President Donald Trump charged over contesting the 2020 general elections in Georgia have now filed notices of removal, requesting the state case be moved to federal court where they will likely have charges or the entire case dismissed based on immunities or additional defenses outlined in the U.S. Constitution.

The nature of each notice differed greatly, pulling from various precedents and listing ever more additional defenses.

Only one notice is needed in order to move the entire case from state to federal court.

Lawyers for Mark Meadows, former chief of staff to President Trump, argued in an Aug. 18 motion to dismiss the charges that by filing their notice of removal on Aug. 15, a day after the indictment, the entire case is already in the federal court jurisdiction, whether other codefendants have applicable defenses or not.

On Aug. 16, Judge Steve Jones had ordered an Aug. 28 hearing on the matter. On Aug. 22, Mr. Meadows’s lawyers filed an emergency motion requesting the court remove the case “promptly,” before the noon Aug. 25 deadline that Fulton County District Attorney Fani Willis had set for the voluntary surrender of the 19 defendants before they face arrest.

“Federal courts have permitted removal without first holding the evidentiary hearing,” they wrote.

Former Justice Department official Jeffrey Clark and former Georgia Republican Party Chair David Shafer have also filed notices of removal.

‘On Behalf of the President’

The main argument for removal centers around the supremacy clause, which states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

This is generally interpreted to mean that federal law takes precedence over all other laws, and federal officers are therefore not bound by state laws and courts.

There is well established precedent that federal officers are immune to suit in state court, and even some precedent that those who are employed by federal officials and acting on their behalf have similar immunity, and lawyers on both sides can be expected to argue on this point.

The federal officer removal statute allows state criminal cases to be removed to federal court when it concerns a federal officer, or a person acting “under color of” the federal officer.

In the case of Mr. Meadows, his lawyers argue, citing 34 cases, both that he is a federal official and emphasize that he was carrying out duties “on the behalf of the President.”

Lawyers for David Shafer, an alternate elector in the 2020 election, argue multiple times that he acted “at the direction of the President and other federal officers.”

“Attorneys for the President and Mr. Shafer specifically instructed Mr. Shafer, verbally and in writing, that the Republican electors’ meeting and casting their ballots on December 14, 2020 was consistent with counsels’ advice and was necessary to preserve the presidential election contest,” the filing reads, noting the President’s presence at the key Dec. 14, 2020, meeting that marked official proceedings in contesting the state’s elections.

The detailed 52-page notice (pdf) outlines multiple defenses “including official immunity, federal preemption, supremacy clause immunity, defenses under the Due Process Clause, and First Amendment defenses.”

Georgia Electors

Mr. Shafer is charged with eight counts: violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, under which all 19 defendants were charged, as well as impersonating a public officer, forgery in the first degree, false statements and writings, criminal attempt to commit filing false documents, forgery in the first degree, and two counts of false statements and writings.

His lawyers argue that all of which he has been accused “stems directly from his service as a Presidential Elector nominee acting under the authority of the Constitution and the Electoral Count Act.”

They detail his actions after the general elections, where they argue that at every step he was “legal counsel advised,” held proceedings as dictated “by law,” or acted “at direction” of federal officials, including at times President Trump.

They lay out an argument that, under the requirements and procedures outlined in the Electoral Count Act, Mr. Shafer is recognized by law as a legitimate contingent elector.

“In short, Mr. Shafer’s duties as a contingent Presidential Elector are created by the U.S. Constitution and governed by federal law,” they wrote. “Like Members of Congress, presidential electors are created by the Constitution, elected by the States, but serve a federal role under federal authority.”

Given this, the attorneys argue that “Mr. Shafer was an officer of the United States” and “at a minimum” was acting under officers of the United States.

“Additionally, in executing his duties as a Presidential Elector, Mr. Shafer assisted the President of the Senate and the Archivist of the United States in carrying out their duties,” they add, in effect “working hand-in-hand with the federal government to achieve a task that furthers an end of the federal government,” which was ruled in a 2012 case as qualifying as acting “under color.”

Defendants with weaker connections to federal duties have qualified for removal, they argue, pointing to a case where an employee of a private aircraft engine manufacturer who inspected manufacturing for the Federal Aviation Administration had his case removed.

“Mr. Shafer was specifically authorized by federal law to take the actions that he took, and he did no more than was necessary to fulfill his federal obligations.”

In this capacity, they argue, Congress has jurisdiction over Mr. Shafer’s as an elector, not the state of Georgia.

“The State’s Indictment attempting to encroach upon and obstruct Congress’ authority through criminal prosecution is preempted, and Mr. Shafer’s Indictment is without authority or jurisdiction.”

Due Process

Both Mr. Shafer and Mr. Meadows make due process arguments, under the Fifth and Fourteenth Amendments respectively.

Past U.S. Supreme Court rulings have established that punishable criminal laws should give “fair warning” and be written “in language that the common world will understand, of what the law intends to do if a certain line is passed.”

In order to be a “fair warning” that line “should be clear.”

Legal experts, in addition to counsel for several of the 19 codefendants who have already filed motions, have pointed out that it is not clear what laws the defendants are accused of violating.

Mr. Shafer’s lawyers add that due process prevents prosecutors from using the law in a novel way, and they allege this is being done in the Georgia case.

“Mr. Shafer had no notice or fair warning that either his conduct in serving as a contingent Presidential Elector during the 2020 general election or his being a party to a complaint filed in a legal proceeding could possibly violate the statutes which the Fulton County prosecutors have charged,” they wrote.

“Indeed, quite the opposite. Mr. Shafer was specifically advised by skilled legal counsel that his actions were legal. The only legal precedent, the 1960 Hawaii election, was conducted in exactly the same manner as the Georgia contingent electors conducted themselves.”

First Amendment Protections

Several First Amendment defenses have also been made in Ms. Willis’s case.

Mr. Shafer’s lawyers argue that all of his actions listed in the indictment are protected under the First Amendment, from his nomination as a presidential elector to the meetings, petitioning, and casting the ballot.

They cite cases protecting the right to speech, political speech, political actions, promoting candidates, advancing a political party’s interest, and appealing to courts.