Legal experts say that defense counsel for several of former President Donald Trump’s co-defendants are taking a calculated risk by asking for state racketeering charges in Georgia related to alleged election interference to be “removed” to federal court.
President Trump and 18 co-defendants—including several of his former attorneys—were indicted by a state grand jury in Fulton County on Aug. 14 over his efforts to contest the 2020 presidential election in Georgia. Charges include violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, soliciting the violation of an oath by a public officer, conspiracy to commit forgery in the first degree, and conspiracy to commit filing of false documents.
Three co-defendants are arguing that they can’t be prosecuted in state court because whatever they did was done in their official capacity as federal officers, and they have federal defenses available to them.
President Trump’s former White House chief of staff, Mark Meadows, is one of those seeking to have his trial removed to federal court. He’s set to appear on the morning of Aug. 28 at an evidentiary hearing before U.S. District Judge Steve Jones in Atlanta about whether the case should be moved; the outcome is expected to be a major indicator of how the case could proceed. Meanwhile, Fulton County District Attorney Fani Willis is expected to argue that all proceedings should stay in the Fulton County Superior Court.
Under federal law, cases filed in state court can be removed, or transferred, to a federal district court that has jurisdiction over the same geographic area. A defendant files a notice of removal in federal court, which has the effect of transferring the case to federal court on a provisional basis. The defendant also notifies the state court and the other parties. A hearing follows in federal court, and if removal is denied, the case is remanded back to state court.
The case can remain in federal court only if that court would have had subject matter jurisdiction to begin with. One of the commonly used reasons for removing a case is that it implicates the U.S. Constitution or a federal statute. If the case remains in federal court, then it'll be tried in that forum according to the laws of the state.
The Georgia charges arose in part from a Jan. 2, 2021, phone call President Trump made to Georgia Secretary of State Brad Raffensperger, a Republican, in what the media has characterized as an effort to “find” enough votes to secure the state’s votes in the Electoral College. A transcript of the call that was later released shows that President Trump said he believed hundreds of thousands of ballots had been cast illegally in the state.
President Trump himself denies wrongdoing and characterizes the federal and state charges pending against him as interference in the 2024 presidential campaign.
Mr. Meadows filed a notice of removal in the U.S. District Court for the Northern District of Georgia on Aug. 15. On Aug. 18, he filed a motion in federal court asking it to dismiss the state charges, arguing that he’s immune from state prosecution under the U.S. Constitution’s supremacy clause, which elevates federal law over state law. He asserts that he was only doing his job as a federal employee.
On Aug. 22, he filed an emergency motion for immediate removal or an order prohibiting Ms. Willis from arresting him. Ms. Willis, a Democrat, had given all the defendants until Aug. 25 to surrender at the Fulton County jail.
On Aug. 23, Ms. Willis responded, saying in a brief that Mr. Meadows’s motion was “meritless” and that enjoining her “from taking action that would facilitate the arrest of the defendant is a request that this Court violate the longstanding principles set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971), requiring federal courts to abstain from interfering with or enjoining state prosecutions.”
Late on Aug. 23, Judge Jones denied the motions by Mr. Meadows and Mr. Clark to dismiss their cases and keep Ms. Willis from arresting them. The judge didn’t rule on the removal motions.
Two legal experts explained the removal process in interviews with The Epoch Times and what it could mean for the defendants.
Mark Miller, an attorney at the Pacific Legal Foundation, a national public interest law firm that challenges government misconduct, told The Epoch Times that a federal employee can only remove a case to federal court in specific circumstances.
“If a federal employee were to commit a robbery on the weekend when he’s off hours, if he tried to remove ... that’s going to get kicked right back to state court because that’s not a legitimate removal,“ Mr. Miller said. ”They were committing a theft, they weren’t acting under federal law.
“Whether it’s Mark Meadows or the other defendants who are looking at removal, they’re arguing that any of the actions that the local state prosecutor there in Atlanta is alleging are conduct that was connected to their work for the federal government and they were acting under color of federal law.”
Moving the case to federal court may benefit defendants, he said.
Instead of drawing from the “ultra-Democrat” jury pool around Fulton County, a federal jury would come from the 10 counties of the Northern District of Georgia around Atlanta, which defense counsel might consider more sympathetic to their clients, according to Mr. Miller.
He said it’s unclear how much of an advantage that might give the clients, “but that certainly would be a strategy I could see a criminal defense lawyer seeing as worth trying.”
The Meadows motion to dismiss the charges is “a unique sort of intellectual kind of exercise that these criminal motions to dismiss sometimes lend themselves to, because it’s a funny situation for the defendant to be in,” Mr. Miller said.
“The defendant is saying, ‘I’m not guilty,’ but at the same time, ‘even if you think if I did everything you said I did, it’s still not criminal.’”
The federal court will probably act “pretty quickly,” he said.
“In an unprecedented case of this nature, you wouldn’t expect the judge to sit on the decision. That’s for sure,” Mr. Miller said several hours before the federal court rejected the motion to dismiss.
Some of the co-defendants may want to keep their trials in state court, he said, “because the Georgia appellate courts would be friendlier to them than even” the U.S. Court of Appeals for the 11th Circuit, even though that court “does have a number of Republican appointees on it.”
But ultimately, no matter what happens with the defendants, their cases are “probably going to the U.S. Supreme Court,” Mr. Miller said.
Attorney Curt Levey, president of the Committee for Justice, a conservative legal advocacy nonprofit, said the argument for removal is “plausible but certainly not a slam dunk.”
Mr. Levy also said it isn’t clear to him that trying defendants associated with President Trump in the federal district would be much better than Democrat-dominated Fulton County.
The federal district is only something like 5 or 10 percent less Democrat, he said.
A Fulton County judge is likely to be “very anti-Trump,” but with a federal judge, “it’s more like 50–50.”
Another advantage of moving the case to the federal system is that an appeal of a denied removal motion or of any pre-trial motions or a conviction will end up in the 11th Circuit, where someone associated with President Trump would have better odds “than what you would get from a state circuit court in Georgia.”
President Trump could still seek removal, according to Mr. Levey.
“We don’t know yet if Trump’s going to ask for removal, but he probably will,” he said.
