Fani Willis Lays a Trap for Mark Meadows

Mark Meadows and Fani Willis, Photo courtesy of Mediaite

Legal observers have been gripped by a fairly nerdy but consequential question of late: Can Mark Meadows, the former White House chief of staff, successfully “remove” the Georgia state case to federal court? And can Fulton County District Attorney Fani Willis stop him?

I say “nerdy” because the arguments are nearly all legal, and not factual, in nature. In fact, the basic activities of Mark Meadows from November 3, 2020 to January 6, 2021 aren’t in dispute. He set up and participated in phone calls with Georgia officials to seek to overturn the election. He went down to Georgia to investigate and monitor the election audit. He set up and attended meetings with state legislators from Michigan and Pennsylvania. He strategized with Trump and others on how to disrupt and delay the joint session of Congress on January 6.

Meadows argues that he did all these activities as a federal official, that they were normal and everyday matters in his job as chief of staff, and that they were protected political speech. But District Attorney Fani Willis, who no doubt has long prepared for this very kind of removal request, says not so fast. Indeed, in her response to this move, she lays a brilliant trap which I’ll discuss below. Because of her strong strategic play, many observers now believe she has Meadows beat.

But nothing is ever certain, so it’s worth asking what happens if Meadows prevails anyway and gets the case removed to federal court. How does this change the way the case proceeds, including the jury pool, the other defendants, the laws applied, the public’s access, and Trump’s chances of making it go away should he, or another Republican, win the presidency next November?

Let’s nerd out together and discuss all things removal, or at least all the things that we really need to know at this point.

Meadows’s arguments for removal

To no one’s surprise, Meadows filed a notice of removal of the state court case, sending it automatically to federal court within the Northern District of Georgia for consideration. The court could have decided to keep the case, to hold an evidentiary hearing before deciding, or to remand it back to state court. The case landed before the Hon. Steve Jones, an African American Obama appointee with a great deal of experience on the bench, and he ordered an evidentiary hearing set for Monday, August 28.

In his notice of removal, Meadows argued that the proper venue for the case is federal court for two basic reasons. First, he argues that  

The conduct giving rise to the charges in the indictment all occurred during his tenure and as part of his service as Chief of Staff. In these circumstances, federal law provides for prompt removal of a “criminal prosecution . . . commenced in a State court . . . against or directed to” a federal official, “in an official or individual capacity, for or relating to any act under color of [his] office.” 28 U.S.C. § 1442(a)(1).

Meadows claims that nothing that he was doing was criminal per se: “arranging Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President.” He argues, “One would expect a Chief of Staff to the President of the United States to do these sorts of things.”

In other words, he was just doing his job.

Second, Meadows argues that he has defenses that are based on federal law, making removal appropriate. These include “a federal immunity defense under the Supremacy Clause of the Federal Constitution.” He argues that this clause offers federal officials “immunity from suit” involving state charges in order to “protect[] federal operations from the chilling effect of state prosecution.”

This is essentially another side of the same legal coin. The question still comes down to whether Meadows was acting in his capacity as a federal official under color of federal law, or whether he was acting outside of that.

So isn’t this a strong argument? Wasn’t Meadows really just doing what a chief of staff is expected to do?

Not at all, argues Fani Willis. Let’s look now at her response to the notice.

Willis lays a brilliant trap

When I read Fani Willis’s response last night, I whistled in admiration. As an one-time avid chess player myself, I recognize a “fork” trap when I see one. A fork move is when a single piece attacks more than one piece simultaneously, as when a knight threatens both a queen and a rook from its new position. When executed correctly, no matter what the opponent does next, it will lead to a body blow.

That is the trap Willis has laid out in her papers. She begins by arguing that, under the Hatch Act, federal officials within the Executive Branch are forbidden from engaging in political activity in the course of their work. That means no campaigning, for example, from the White House or by White House staff, including the chief of staff. It includes a specific prohibition on anyone “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.”

But isn’t that precisely what Meadows is accused of doing? Willis brings the hammer down hard on this point, noting that the Office of the Special Counsel found that Meadows and a least a dozen other Trump officials violated the Hatch Act. She cites a report that found

[S]enior Trump administration officials chose to use their official authority not for the legitimate functions of the government, but to promote the reelection of President Trump in violation of the law.

The report concluded that, “[f]rom OSC’s perspective, the administration’s attitude toward Hatch Act compliance was succinctly captured by then-Chief of Staff Mark Meadows, who said during an interview that ‘nobody outside the Beltway really cares’ about Trump administration officials violating the Hatch Act.”

Those words now come back to bite. Willis points out that the state charges against Meadows arise precisely from his disregard for the lawful scope of his duties. He can’t have been acting under color of federal law while blatantly violating the Hatch Act prohibition on interfering with the result of the election.

That’s already pretty devastating, but then here comes the fork. Meadows, Wills argues, has claimed outright in a different filing that “all of his relevant conduct was impermissible political activity” by asserting that his actions were “unquestionably political” in nature.

Meadows made this rather boneheaded move as part of his Motion to Dismiss the entire case, which he also filed last week. In that motion, as Willis points out, Meadows broadly declared that “[a]ll of the alleged conduct as to Mr. Meadows relates to protected political activity that lies in the heartland of First Amendment” and “[a]ll the substantive allegations in the Indictment concern unquestionably political activity and thus, if not covered by Supremacy Clause immunity, the charges would be barred by the First Amendment.”

Thanks for that admission, Mark. To make your First Amendment argument, you just set yourself up for a takedown on your removal request. In fact, Willis points out, Meadows has admitted he was running around doing “unquestionably political activity” in violation of his duties as a federal official under the Hatch Act.

WIllis uses the same admission to skewer his “Supremacy” clause argument. She cites caselaw holding that

Supremacy Clause immunity requires the defendant to show both that he was performing “an act which he was authorized to do by the law of the United States” and that, in performing that authorized act, “he did no more than what was necessary and proper for him to do.”

That most certainly does not including political campaigning in violation of federal law.

The hearing on Monday will be interesting. Will Meadows disavow his own broad statement that everything he was doing was protected speech because it was “unquestionably political activity”? He may have to simply to avoid having the case remanded immediately back to state court. But then what will he be left arguing? This is probably top of mind for his lawyers as they prepare for Monday’s showdown.

What happens if it gets removed to federal court?

Even though I believe Willis has the stronger argument and is now likely to prevail, we should still discuss what happens if Meadows finds a way out of Willis’s trap or Judge Jones somehow disagrees and decides to keep the case. So let’s play a legal lightning round here with a bunch of FAQs, or as I sometimes like to call them, WTFAQs:

Q: If the removal successes, does this mean Fani’s out? 

A: No. She would still try the case, just before a different judge in a different courtroom.

Q: What happens to the jury pool and jury selection?

A: Many pundits assumed Meadow’s removal move was a strategic play to gain a more favorable jury pool because the Northern District of Georgia extends all the way up to more rural parts of the state. But even if you assume that juries will usually vote their politics (which actually isn’t suported by the data), the local federal rules state that the jury will be drawn from the division in which the district court sits, which in this case is the Atlanta metro area. That area is also mostly solidly blue and only slightly less Democratic-leaning than Fulton County itself.

Q: Will the state crimes still be charged?

A: Yes. Nothing about the substantive law to be applied in the case, including the state RICO statute, would change. The case would apply federal procedural rules, including the rules of evidence. Appeals would go up to the 11th Circuit, which is conservative, but not necessarily any more conservative than the Republican dominated Georgia Supreme Court.

Q: If Meadows removes the case, does every other defendant get removed, too?

A: Generally, yes. According to research cited by former U.S. Attorneys Preet Bharara and Joyce Vance (which I have not independently verified), a successful removal generally brings all co-defendants over to the new federal venue, unless a party brings a separate motion to “sever” the case with respect to one or more defendants.

Q: Would the case still be televised?

A: Unlikely. This is perhaps the biggest set-back that would result from a removal: the ability of the public to have full access to the proceedings and to watch them in real time. Federal court cases are as a rule not televised, but a Georgia state court case would be. In the interest of preserving our democracy, it is important that the cases be as transparent and open as possible, but Judge Jones probably would not permit cameras in the courtroom.

Q: Could Trump be pardoned by the next president?

A: No. Any conviction from the case, even if removed to federal court, would still be a state law conviction under Georgia law. Interestingly, in Georgia a State Board of Pardons and Parole determines all pardons, not the governor, and defendants wouldn’t even be eligible until much or all of their sentences were served. Efforts to change this law now that Republicans are being indicted have been brushed aside by Governor Kemp.

Q: Could Trump or a GOP president stop the prosecution?

A: If Trump regains the presidency, it is an open question whether a state case, whether it is proceeding in state or federal court, would have to be paused while he is serving as president. An internal Department of Justice memo sets a policy against prosecuting a sitting president, which is one reason why Trump was not indicted and prosecuted for obstruction following the Mueller Investigation. And while Trump or another GOP president could fire Jack Smith as Special Counsel, they can’t fire Fani Willis and they can’t order the judge to stop hearing the case, so the question would probably have to be resolved as a matter of first impression by the Supreme Court. The best defense against Trump using the power of the Oval Office to keep himself from being convicted is to prevent him at all costs from regaining the White House.

I hope that answers most of your burning questions about the federal removal threat-that-is-not-so-bad-a-threat. Monday will be a momentous day in Trump legal land as we follow the first evidentiary hearing of the indictment era as well as learn what Judge Chutkan in D.C. is thinking for a target trial date.

One last note: Many were hoping I would cover the GOP debate from last night. I confess, I did not watch it because so much of it is useless, kiddie-table posturing, especially without the former president in the room and on that stage. But never fear! My Saturday “Just for Xeets and Giggles” covers some of the best highlights and responses to the honks and whistles coming from the GOP clown car in Milwaukee. Look for it Saturday morning, and have a great day!

Jay

P.S. My editor is off today checking her eldest into his first day in college (Harvard!), so any typos and errors here are mine and mine alone.