I wrote yesterday how Mark Meadows Files To Remove Georgia State Prosecution To Federal Court under a statute that allows for removal of state cases involving acts of a federal official. That post has the Notice of Removal that lays out the statutory grounds why the prosecution of Meadows by Fulton County (GA) District Attorney Fani Willis should be removed from state court.
The statute requires a fairly expedited procedure for the federal court to determine whether the case should be summarily remanded (for example if the statute clearly does not apply), and if not, then a prompt hearing should be held to determine whether the case stays in federal court.
The federal judge just issued an Order finding that summary remand was not justified, and setting the following briefing schedule with a hearing on August 28:
ORDER re 1 Notice of Removal filed by Mark Randall Meadows. The Court concludes the face of the Notice of Removal 1 and attached Indictment [1-1] do not clearly indicate that summary remand of this matter is required. No opinion about whether removal will be permitted or on a federal immunity defense is being made at this time. Pursuant to 28 U.S.C. § 1455(b)(5), the Court ORDERS that the Parties participate in an evidentiary hearing concerning the Notice of Removal of the Indictment against Mark R. Meadows on Monday, August 28, 2023, at 10:00 A.M. at the Richard B. Russell Federal Building and United States Courthouse, 75 Ted Turner Drive, S.W., Atlanta, Georgia, in Courtroom 1907.The Court furthermore ORDERS that Defendant Meadows immediately SERVE the Fulton County District Attorney, Fani Willis, with a copy of the Notice of Removal and a copy of this Order. Once the Fulton County District Attorney has been served, she may submit a written response to Defendant Meadows’s Notice of Removal no later than Wednesday, August 23, 2023. Any response submitted must not exceed 25 pages in length. In the interim, pursuant to 28 U.S.C. § 1455(b)(3), proceedings may continue in the Superior Court of Fulton County, Georgia. Signed by Judge Steve C. Jones on 8/16/2023. (pdw) (Entered: 08/16/2023)
From the Order:
This matter appears before the Court following Defendant Mark Randall Meadows’s Notice of Removal under 28 U.S.C. § 1442 and § 1455.1 Doc. No. [1]. The Court enters the following Order in satisfaction of the statutory requirements for state criminal prosecutions removed. See 28 U.S.C. § 1455(b). For the following reasons, the Court concludes that summary remand under 28 U.S.C. § 1455(b)(4) is not required based on the face of Meadows’s Notice of Removal.
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Here, the Court determines that the Notice of Removal and attached Indictment are sufficient to show that summary remand is not clearly required. In other words, it is not immediately apparent from the face of the documents that the Court lacks subject matter jurisdiction under Section 1442(a)(1) over this removal action.
Meadows asserts federal officer jurisdiction under 28 U.S.C. § 1442, which requires showing “the case [is] against any officer, agency, or agent of the United States for any act under color of such office” and that “the federal actor or agency being challenged [raises] a colorable defense arising out of its duty to enforce federal law.” Cohen, 887 F.2d at 1453–54. The Notice of Removal indicates that Meadows held the federal role of White House Chief of Staff from March 31, 2020, until January 20, 2021. Doc. No. [1], 3. Meadows also submits that he was acting in this capacity when all the criminal acts alleged occurred. Id. at 3–7. Meadows finally asserts he has defenses to these criminal charges that “arise under federal law, including a federal immunity defense under the Supremacy Clause of the Federal Constitution.”3 Id. at 7; see also id. at 11–12 (specifying the federal immunity defense and arguing its application to Meadows).
Accordingly, the Court determines that Meadows’s Notice of Removal is sufficient to withstand summary remand under Section 1455(b) 4). The Court emphasizes that this Order offers no opinion on the Court’s ultimate determination of its subject matter jurisdiction over this case or Meadows’s federal immunity defense. Pursuant to 28 U.S.C. § 1455(b)(5), the Court will make its final determination on these matters once they have been completely argued and briefed and are ripe for the Court’s full review. To reiterate, this Order’s limited conclusion is that the Court, based solely on the face of the Notice of Removal and the Indictment, does not clearly lack subject matter jurisdiction over Meadows’s Notice of Removal. Thus, the Court will proceed with an evidentiary hearing pursuant to 28 U.S.C. § 1455(b)(5).
At this stage, it does not appear that the state court prosecution is halted yet. From the Opinion:
Moreover, the filing of a notice of removal of a criminal prosecution under Section 1455 “shall not prevent the State court in which such prosecution is pending from proceeding further” even though a “judgment of conviction” cannot be entered until the prosecution is remanded. 28 U.S.C. § 1455(b)(3).
If after hearing the District Court finds that removal is proper, then the criminal case would proceed in the federal court.
So today’s Order gets Meadows foot in the door of federal court. We’ll find out after the hearing if he gets to enter. And once entered, will the Court accept his planned motion to dismiss the charges as barred by immunity from state prosecution. From the Notice of Removal:
Defendant Meadows has defenses to the charges in this Georgia indictment that arise under federal law, including a federal immunity defense under the Supremacy Clause of the Federal Constitution. See U.S. CONST., art. vi, cl. 2; Neagle, 135 U.S. at 57; Kordash v. United States, 51 F.4th 1289, 1293 (11th Cir. 2022); Denson v. United States, 574 F.3d 1318, 1345–46 (11th Cir. 2009).
I have not seen any reports that Trump has filed a Notice of Removal.
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