The Week Ahead

I hope you are having a restful and fulfilling Sunday. Here are some stories in our legal and political system that I am following. We may see them further develop this week.

Mark Meadows fails to remove the Georgia case to federal court

The most consequential news in Trumpland, which broke late Friday afternoon, was that his former chief of staff, Mark Meadows, had lost an important battle in court. Federal judge Steve C. Jones of the Northern District of Georgia, after receiving briefing from the parties, holding a high stakes hearing, and then requesting additional briefing on the question of removal, ultimately issued a 49-page ruling in favor of District Attorney Fani Willis.

Jones held that the evidence he reviewed “establishes that the actions at the heart of the state’s charges against Meadows were taken on behalf of the Trump campaign with an ultimate goal of affecting state election activities and procedures.”

In arguing for removal, Meadows previewed many of his defenses and took his best shot, including the argument that he was only trying to effectuate the peaceful transfer of power and “land the plane.” The evidence suggests otherwise, however, based on personal efforts he made to force recounts and audits in Fulton County while offering Trump campaign funds to do so, as well as his own pressure-laden words during recorded calls between the White House and the Georgia Secretary of State’s office.

Meadows also rolled the dice and took the stand in his own defense, which could prove problematic for him later because his credibility was shredded on cross-examination. (At one point, Meadows tried to disclaim his involvement in the fake elector scheme by arguing that when he wrote “we” in an email to a Trump Campaign staffer, he really meant “the Trump Campaign,” on whose behalf he claimed not to acting, and not really himself.)

Among all of the defendants in the state court case, Meadows likely had the strongest argument for removal. If he cannot prevail, it is unlikely that others can make a better case. That certainly holds true for Trump himself. After all, if his chief of staff cannot prove that he was working on behalf of the country instead of the Trump Campaign, it would be hard for Trump to argue removal is proper in his own instance.

Meadows has already filed a notice of appeal with the 11th Circuit, and this case is sure to go all the way up to the Supreme Court. For legal nerds out there, the key question likely will be the correct legal standard to apply for removal in a RICO conspiracy case filed in state court where, as here, a defendant who for argument’s sake was performing a “mixed” role is seeking removal because at least one of the alleged overt acts of the conspiracy was performed within his duties as a federal officer. I personally believe the judge got it right here, but we’ll see.

Until that question is decided on appeal, the case can move ahead in Fulton County, and that means a trial of at least two defendants, Kenneth Chesebro and Sidney Powell, beginning in late October if the current calendar holds.

There were 20 people who went unindicted despite a grand jury recommendation

There was a certain amount of shock and dismay when the final report of the Georgia special investigative grand jury was unsealed and made public, also on Friday. (Talk about a Friday news dump!) In that report, it was clear that there had been 39 possible defendants, but District Attorney Fani Willis, after months of careful deliberation and likely further investigation, only decided to move ahead and seek indictments against 19 of them.

Among the 20 who were spared a criminal indictment and charges, at least for now, are some big names in Trumpworld:

• Ret. Gen. Michael Flynn, who was a key advocate of imposing martial law and seizing voting machines;

• Cleta Mitchell, an election denying attorney who was on the infamous Trump/Raffensperger call;

• Boris Epshteyn, another Trump attorney and advisor who helped coordinate the fake elector scheme;

• Lin Wood, a lawyer who peddled election and QAnon conspiracies alongside Flynn;

• Former Georgia Senators Kelly Loeffler and David Perdue; and

• Sen. Lindsey Graham, who allegedly pressed Raffensperger to throw out valid absentee ballots during a phone call.

Much of the reporting around those who dodged the indictment bullet centered around Sen. Graham, who denied all wrongdoing. “To suggest I’m part of some grand scheme to overturn the election makes no sense,” Graham said. He added later, “I think there’s an effort in this country to weaponize the law. And we should all be worried because you’re opening Pandora’s box here.”

It was a box that Graham himself had opened, however, back in November of 2020. Raffensperger told The Washington Post in an interview at the time that he felt pressured by Graham, who had echoed Trump’s claims about election irregularities. Raffensperger said, and likely later testified, that on one call Sen. Graham appeared to be asking him to find a way to set aside legally cast ballots.

The news that more than half of the potential defendants ultimately went unindicted has set off a great deal of speculation as to why. In some cases, the grand jury saw a number of its members opposed to charges, and that may have stayed Willis’s hand. Prosecutors generally only want to charge where they are reasonably sure they can win a conviction. And if there were already that many grand jurors unable to reach a finding of probable cause to indict some defendants, conviction beyond a reasonable doubt might prove daunting.

Other strategic factors may also have played a role. Sen. Graham, for example, would also have filed a motion to remove the entire case to federal court. The Eleventh Circuit has already ruled that certain parts of Graham’s testimony were off limits to prosecutors under the Speech and Debate clause of the Constitution. To me, that would have set up a good case for Graham to remove the entire action, and Willis may have decided it wasn’t worth it. (There was also no recording of the conversation between Graham and Raffensperger, making proof of what Graham had said far more difficult to establish legally.)

There are also questions about why certain key members inside the “Team Crazy” White House conspiracy to overturn the election were spared. Why indict Rudy Giuliani, John Eastman, Jeffrey Clark, Sidney Powell and Kenneth Chesebro in Georgia, but not Michael Flynn, Cleta Mitchell, Lin Wood and Boris Epshteyn? Notably, the former five defendants are among the six unnamed co-conspirators in the federal case in D.C. while at least three of the latter four are not believed to be. (Epshteyn may or may not be the unnamed 6th co-conspirator in D.C.)

We know from the public record that the unindicted folks were very much in cahoots with the others. Some or all of them might be cooperating, but it’s unclear. In the case of Flynn, Mitchell, Wood and Epshteyn, the investigative grand jury had voted overwhelmingly to indict, but Willis elected not to for reasons she and her office alone currently know. But it’s certainly quite curious that the federal and the Georgia state case appear to be putting nearly all of the same people into similar buckets.

We’ve learned more about the Mar-a-Lago IT worker who flipped

Last week, CNN confirmed what many already suspected: Yuscil Taveras, the IT worker whom defendant Carlos de Oliveira had approached for assistance in deleting video evidence of boxes being moved on the Trump property, is now actively cooperating with prosecutors as part of a deal where he will escape any criminal charges.

The New York Times, through lengthy investigative reporting, has now filled in much of the backstory. According to witnesses the Times interviewed, after de Oliveira approached him about deleting the video evidence, Taveras told at least three other colleagues about the request, and that “ricocheted” around the grounds of Mar-a-Lago and “up the chain of command at Trump Tower in Manhattan,” prompting Taveras’s superiors to put the kibosh on the plan.

Taveras had already decided he would not go along with the plan, not wanting to risk prison for it. But he was cagey in his first testimony before the grand jury, likely because he was following the “advice” of his lawyer, paid for by Trump PAC money. After replacing that lawyer with a free federal public defender, Taveras came clean and retestified.

Note that Trump’s lawyers are working hard to exclude Taveras’s testimony, which they argue (before a judge who actively stepped in to invite this line of questioning) was the result of “grand jury abuse” because it was obtained through a continuing grand jury investigation outside of the Florida court’s jurisdiction. There is of course nothing wrong or abnormal about such a process, but Judge Aileen Cannon may try to run with this. We’ll have to see how far she gets.

Elon-gate

The final story stems from actions by Elon Musk back in 2022, which are only coming to fuller light because of the impending publication of a biography of Musk written by author Walter Isaacson. In the book, which comes out Tuesday, Isaacson recounts a fateful decision by Musk. As CNN reported,

Elon Musk secretly ordered his engineers to turn off his company’s Starlink satellite communications network near the Crimean coast last year to disrupt a Ukrainian sneak attack on the Russian naval fleet, according to an excerpt adapted from Walter Isaacson’s new biography of the eccentric billionaire titled “Elon Musk.”

As Ukrainian submarine drones strapped with explosives approached the Russian fleet, they “lost connectivity and washed ashore harmlessly,” Isaacson writes.

Musk’s decision, which left Ukrainian officials begging him to turn the satellites back on, was driven by an acute fear that Russia would respond to a Ukrainian attack on Crimea with nuclear weapons, a fear driven home by Musk’s conversations with senior Russian officials, according to Isaacson,

After Musk came under fire for this unilateral decision to assist the Russians in their war, he put out what appears to be a confession. On his platform X, Musk tweeted,

There was an emergency request from government authorities to activate Starlink all the way to Sevastopol. The obvious intent being to sink most of the Russian fleet at anchor. If I had agreed to their request, then SpaceX would be explicitly complicit in a major act of war and conflict escalation.

Critics of Musk pointed out that Ukraine was already in a major war, and that his actions permitted the Russian navy to continue to shell Ukrainian cities, resulting in the deaths of thousands of Ukrainians including noncombatant women and children. They also noted that other acts of “conflict escalation,” such as hitting Russia itself with drones, have not resulted in the dreaded use of nuclear weapons.

Musk was not only wrong in his strategic assessment, he was interfering in the military operations of a U.S. ally in a time of war. This could amount to a violation of the Logan Act, an old and rarely invoked law which prohibits U.S. citizens from negotiating or communicating without authorization with any foreign governments about U.S. foreign policy or disputes. It appears from the record that, prior to this game-changing decision, Musk held talks with Russian officials about the war.

This story is in its very early phase, but there are already calls for a congressional investigation and for Musk’s power to be curtailed. How that might eventually happen, particularly with respect to the Starlink satellite system, is unclear. But as Ronan Farrow warned earlier in his piece in the New Yorker about Musk, the true danger here is that where our government has retreated, such as in the area of space communications, Musk has stepped in and assumed an outsized role.

That role has now enabled him to play powerbroker and directly affect the outcome of the war through capricious, megalomaniacal and misinformed behavior, egged on and tainted by our enemies. This is a situation no government, and certainly not one as powerful as the U.S., should ever find itself in.

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