Stop it. Mark Meadows Actually Took the Stand?

Former White House chief of staff Mark Meadows. Photo: Drew Angerer/Getty

There were fireworks down in a federal court in Atlanta on Monday. On the docket was a removal request by former White House chief of staff, Mark Meadows. His goal? Transfer the case the hell out of state court in Georgia, likely so he can make clean, federal legal arguments before a federal judge—rather than a Georgia state judge or jury—for why he should be dismissed entirely.

His arguments were familiar. We had previously gotten a preview of them and Fani Willis’s response, as I wrote about earlier. But what no one expected was that Meadows himself would waive his Fifth Amendment right against self incrimination and testify on his own behalf.

Hoo boy. When Meadows showed up at the courthouse, there were murmurs, and then apparently audible gasps when the defense actually called him as a witness. Normally, this is considered too risky a move, especially in an ancillary hearing such as this one. Meadows could wind up making key admissions under oath that would come back to bite him. 

He must have thought the risk was worth it.

So how did Meadows do? Let’s start from the presumption that the bar to remove a case to federal court is fairly low, where the defendant accused of wrongdoing by the state is a federal official who also claims defenses based in federal law. With those two parts not really in dispute, the only real question facing the judge is whether Meadows was acting in his capacity as a federal official when he committed the acts alleged in the indictment.

And on this, Meadows whiffed more than a few times and came off sounding quite noncredible to legal observers in the room. Despite the low bar for removal, this now winds up being a closer call, with many wondering whether Meadows’s gambit was foolish. Indeed, he made some startling admissions under cross-examination that should serve as a cautionary tale for why defendants should be hesitant to ever take the stand and testify.

Let’s walk through his main arguments and the state’s response. We’ll highlight some key moments where Meadows got himself in trouble, but we’ll also test the limits of the state’s arguments.

Meadows’s claim, in a nutshell

If you’re the guy who set up calls and meetings for Trump to help him contest the results of the elections in the swing states, and you were on the phone or in the meetings with the ex-president, you’re in a tough spot. You begin from a position of having to explain why any of that work was part of your job as White House chief of staff, rather than part of running all-things-Trump for the Trump Campaign.

Meadows tried to wiggle out of it with some fairly strained logic, and my own B.S. meter was hitting the red zone. As the Washington Post reported, Meadows stated under oath that

he helped question the 2020 presidential election results out of a federal interest in “free and fair elections” intended to build national trust in the outcome and bring on a peaceful transfer of power.

Meadows claimed he was the sane one in the room, trying to resolve “open questions” that “continued to be a roadblock for initiating other plans.” Meadows added: “I just needed to land the plane.” 

With respect specifically to the infamous and recorded Trump/Raffensperger call, Meadows argued this was an effort to reach a “compromise” over the ongoing litigation the Trump Campaign had filed. Meadows claimed he merely wanted to find a resolution in order to “get things off the President’s plate” so they could focus on the “peaceful transfer of power.”

Right, Mark. So none of that, including your bizarre insistence to Raffensperger that there were dead people in Georgia who had voted, was actually to help Trump win reelection? It was just to try to smooth things over so that Trump would gracefully hand the keys to Joe Biden?

Like I said, B.S. meter on high. 

Per reporting by the New York Times, Georgia Secretary of State Brad Raffensperger himself testified that he considered the call, which he had tried numerous times to avoid, as a “campaign call” and that “outreach to this extent was extraordinary.”

Ultimately, this line of reasoning by Meadows led to a fairly absurd position. As Politico observed,

Meadows and his lawyers took an extraordinarily broad view of his chief-of-staff duties. They argued that any matter capable of distracting Trump or diverting his attention fell within the scope of those duties and should therefore be covered by a federal law that allows some state criminal cases against federal officials or former federal officials to be moved to federal court.

“He is federal operations,” Meadows’s lawyer, George Terwilliger, told [Judge] Jones during closing arguments at the day-long hearing, calling Meadows Trump’s “alter ego” and at one point arguing that the chief of staff’s official duties were even broader than Trump’s.

Got it. Wow, what a convenient argument! Even when it looks like you’re not acting like a federal official, because you’re out doing Trump Campaign work, you can claim it is official work because you have to do this in order to keep Trump focused on his job!

This is the functional equivalent of claiming your babysitter’s pay as a deductible business expense because it frees you up to do your own work. 

And isn’t there a law against White House staff acting like campaign workers? Indeed there is, and it’s called the Hatch Act. As I wrote my earlier piece, in her response to the notice of removal, Fani Willis laid out clearly why Meadows’s violation of the Hatch Act precludes him from claiming he was acting in his official capacity. And at the hearing, the District Attorney showed why Meadows’s argument leads to the inevitable but very wrong conclusion that the White House chief of staff can never really violate the Hatch Act—because that tail can always wag the dog.

Cornering Meadows as a matter of law

Taking up Meadows’s cross-examination was Anna Cross—a rather perfect surname for the occasion. Cross is a seasoned prosecutor in Willis’s office, and she pressed Meadows on what kind of federal policy or interest he was actually carrying out when performing political acts for the Trump campaign. Meadows responded that his position by its very nature sometimes involves politics, again pressing his exception-swallowing-the-whole argument.

Cross ultimately challenged Meadows to come up with any situation that he would view as outside the scope of his job duties. He could offer only one example: speaking at a campaign rally. For me, this drove home the point that Meadows’s position would stretch “official duties” beyond recognition.

As Politico reported, Judge Steve Jones at times also appeared skeptical of Meadows’s argument and tried to set some baselines. “Is there a role under Article II of the Constitution for the president in a state election or any election?” Judge Jones asked Meadows, directly and somewhat rhetorically.

But Meadows just played dumb. “I don’t know enough to opine,” he said, claiming his responsibility was “to keep [Trump] well-informed and well-advised on a variety of issues.”

Prosecutor Donald Wakeford openly ridiculed Meadows’s argument for a vast expansion of his official duties as chief of staff. “It is limitless. It has no horizon. It never ends,” Wakeford argued to Judge Jones. “Everything he does is within the scope of his duties.”

As Cady would say in Mean Girls, “The limit does not exist!”

The factual holes in Meadows’s argument

In addition to Meadows’s argument leading to an absurd and unworkable result as a matter of law, there were serious factual issues with Meadows’s account.

For example, as revealed on cross-examination and as highlighted on CNN by Georgia State law professor Anthony Kreis, if Meadows was only interested in serving the White House’s goals of achieving “free and fair elections,” why did he send a text message to Georgia state official offering to use Trump Campaign funds to pay for a signature audit in Fulton County? Meadows didn’t have a good answer. 

Also, as Anna Bower of Lawfare noted, if Meadows was solely acting in his official capacity, why did he help coordinate efforts among campaign officials in setting up the fake elector scheme? The prosecution introduced an email, from Meadows to Trump Campaign manager Jason Miller, saying, “We just need to have someone coordinating the electors for states.” How was that part of his official duties, and how did it serve an interest in ensuring “accurate and fair elections”?

At this point, Meadows stumbled badly, insisting that when he’d said “we,” he didn’t mean himself and the campaign together, he meant only the campaign. Huh? Okay. Pro-tip moment! If you’re reduced to arguing that “we” doesn’t actually include “you,” then you’re probably lying through your teeth. I can’t think of a use of “we” that doesn’t include the speaker. Maybe at campaign rallies, Mark?

We are not amused.

Finally, and as asked by prosecutors and underscored on CNN by Marc Short, the former chief of staff to Mike Pence, if this was really about accurate and fair elections, why didn’t Meadows involve members of the actual White House in these discussions? Why exclude the lawyers from the Department of Justice and the experts from the Department of Homeland Security, and turn instead to outside lawyers who were spouting election fraud conspiracies? If this was about the government stepping in, where was the government?

The answer is simple. The actual lawyers of the White House and the Department of Justice had already told the ex-president that his claims of a stolen election were unsupported and false. And Trump had fired Chris Krebs, the head of cybersecurity at DHS, who had rejected Trump’s claims of widespread fraud, saying there “is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” Trump had surrounded himself with lawyers and nutjobs willing to back up his false claims, and he didn’t want anyone else from the government in the room or on those calls who might refute him.

Moreover, as Short stated in his CNN interview, there was no push inside the White House at that time toward the “peaceful transfer of power” as Meadows claimed he was trying to achieve. In fact, it was the exact opposite. There is plenty of evidence, Short pointed out, that the White House, presumably via Meadows’s direct orders, was seeking to halt all transition efforts. 

Big admissions for a risky gambit

It’s worth noting also that Meadows made some fairly broad admissions that will haunt him if he fails to secure removal and then later get himself dismissed as a defendant.

As CNN’s Jeremy Herb reported, Meadows testified, “I would get invited to almost every meeting that the president had.” Sometimes people would meet with him so he could “get in (Trump’s) ear and pass along their message,” Meadows said, under oath.

The Washington Post’s Jennifer Rubin tweeted a hot but accurate take of the pickle Meadows has gotten himself into through his testimony.

1. Meadows confessing to involvement in conspiracy

2. making claims other witnesses may rebut 

3. acknowledging campaign nature of certain actions. 

collectively = real problem

Only the best people, right, Donald?

Okay, so now what?

Judge Jones now has a decision to make. And it may take some time. He acknowledged at the end of the hearing that there isn’t much law on the subject of removal, especially where the question concerns whether a federal official was actually acting outside of his official duties. It just doesn’t come up that often. 

The stakes are enormously high for the country, so he needs to get this right. Removal would likely bring all of the other defendants over, absent a successful motion to sever. Plus, the trial would no longer be televised, which would be a blow to transparency. 

And Meadows, should he succeed here, would have a pretty good shot at getting dismissed under a Supremacy Clause argument. After all, the judge would have already ruled that Meadows was in fact acting in the course of his official duties—the very kind of thing the Supremacy Clause exists to protect defendants against when it comes to state level prosecutions.

Even if Judge Jones rules against Meadows, as he ought to, this would not be over. A removal denied by a district court is an immediately appealable matter. Meadows could take this to the 11th Circuit and then likely up to the Supreme Court, which will be waiting with its shadow docket to issue a final disposition.

Meanwhile, while we’re awaiting the federal court ruling, the state case can proceed. Arraignments are set for the Georgia defendants next week, on September 6.