Government

Mark Meadows's Removal Petition Looks Strong. His Motion To Dismiss ... Not So Much.

Win the battle, lose the war.

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Press Secretary Kayleigh McEnany Briefs Media At White House

(Photo by Alex Wong/Getty Images)

After a hearing on Monday in which Mark Meadows testified at length in a desperate effort to get the RICO charges against him in Georgia moved to federal court, Judge Steve Jones ordered additional briefing from the parties. The question seems like mixed news for the former White House chief of staff:

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 under 28 U.S.C. § 1442(a)(1)?

The court appears to have concluded that some but not all of the overt acts alleged fall within the scope of Meadows’s official duties, suggesting that he might win the battle for removal, but lose the war to get his case dismissed under the Supremacy Clause.

Yesterday Mark Meadows and Fulton County District Attorney Fani Willis made their respective pitches.

Prosecutors submitted their response first, making the novel argument that it was irrelevant if all the overt acts were under color of Meadows’s federal office, because the conspiracy itself bears no relationship to any federal duty. That is, because the goal of the conspiracy was “to transform Mr. Trump from a losing political candidate into a winning one, no matter what the outcome of the election had actually been,” the fact that some of the overt acts were under color of office does not allow Meadows to qualify for federal removal.

Prosecutors also claim that Meadows has failed to satisfy the second prong of federal removal because he hasn’t alleged a colorable federal defense to all the charges, as is implicitly acknowledged in the court’s briefing order.

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However, while the defendant need not show a “clearly sustainable defense” at this stage, he cannot even show a “possibly sustainable defense.” Likewise, while he is not required to “virtually win his case,”  he cannot even show that his defense would make it possible for him to win his case. Supremacy Clause immunity could do neither under the scenario contemplated in this Court’s question.

For his part, Meadows makes a robust argument that precedent cuts in his favor, at least as to the first prong of federal removal. He cites multiple cases in both the Northern District of Georgia and the Eleventh Circuit holding that it’s sufficient to allege that some of the charged conduct is colorably within the scope of the defendant’s official duties. Although, to be fair, many of those cases involve civil removal. But he more or less ignores the predicate of Judge Jones’s question which is that some of the alleged conduct is outside the scope, and thus a Supremacy Clause defense would be definitionally unavailing.

As University of Texas Law Professor Lee Kovarsky notes on Twitter, this would appear to doom Meadows’s pending motion to dismiss under a theory of Supremacy Clause immunity.

 

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Elsewhere in their response, prosecutors unsubtly hint that Meadows may have perjured himself on the stand, giving the court “ample basis not to credit some or all of the defendant’s testimony from the evidentiary hearing.”  They particularly mock his attempt to downplay the use of the word “we” in an email to campaign official Jason Miller about assembling slates of fake electors. Meadows tried to wave away his apparent inclusion in the campaign as a verbal tic leftover from his time as a politician.

He then followed up his response by pointedly tapping his foot and clearing his throat in Judge Jones’s direction. In a notice to the court, Meadows points to DA Willis’s motion to schedule the case for October 23, 2023, and complains that, if “removal is not promptly effectuated, he will be substantially prejudiced and subjected to the very burdens of state-court litigation from which federal law relieves him upon notification to the state court.”

And still it remains an open question whether DA Willis could simply drop which overt acts Judge Jones thinks qualify for federal removal and get the case back to Fulton County.

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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