Mark Meadows Files To Remove Georgia State Prosecution To Federal Court

Mark Meadows Files To Remove Georgia State Prosecution To Federal Court

Mark Meadows has invoked a federal statute that allows removal of a case from state to federal court where the issue in the state case is the defendant’s conduct as a federal official.

This is an important point of Constitutional law. It's found in 1 of the 1st cases 1st year law students study: McCulloch v. MD, decided in 1819. A holding of the case is that state actions cannot bind the federal govt, setting the stage for immunity for federal officers.

— Leslie McAdoo Gordon 🇺🇸 (@McAdooGordon) August 16, 2023

In the case of Meadows, all of his actions were in the context of him being Trump’s White House Chief of Staff, and none of his conduct in and of itself was criminal. He is looped into this because under conspiracy theories (including RICO) even lawful actions in furtherance of in illegal conspiracy could render the defendant liable.

From Meadow’s Notice of Removal filed in federal court in the Northern District of Georgia:

Defendant Mark R. Meadows, former Chief of Staff to the President of the United States, removes this proceeding from the Fulton County Superior Court (Case No. 23SC188947, filed August 14, 2023), insofar as it charges Mr. Meadows in two counts (Counts 1 and 28) of a 41-count indictment, to the United States District Court for the Northern District of Georgia under 28 U.S.C. §§ 1442 & 1455.

Mr. Meadows has the right to remove this matter. 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). The removal statute “protect[s] the Federal Government from the interference with its operations that would ensue were a State able, for example, to arrest and bring to trial in a State court for an alleged offense against the law of the State, officers and agents of the Federal Government acting within the scope of their authority.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 150 (2007) (cleaned up).0F1

Nothing Mr. Meadows is alleged in the indictment to have done is 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. One would expect a Chief of Staff to the President of the United States to do these sorts of things. And they have far less to do with the interests of state law than, for example, murder charges that have been successfully removed. E.g., In Re Neagle, 135 U.S. 1, 71 (1890); Tennessee v. Davis, 100 U.S. 257, 260–62 (1879). This is precisely the kind of state interference in a federal official’s duties that the Supremacy Clause of the U.S. Constitution prohibits, and that the removal statute shields against. See Neagle, 135 U.S. at 76 (holding that a federal official carrying out his duties “is not liable to answer in the courts of [a State]”).

Mr. Meadows intends to file a motion to dismiss the indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure as soon as is feasible. Mr. Meadows respectfully requests that the Court “order an evidentiary hearing to be held promptly” and “dispos[e] of the prosecution as justice shall require.” 28 U.S.C. § 1455(b)(5). Here, justice requires the prompt dismissal of the charges against Mr. Meadows. At a minimum, in the meantime, federal law requires granting removal, which will halt the state-court proceedings against Mr. Meadows, see 28 U.S.C. § 1455(b)(5), while the motion to dismiss is resolved.

Fani Willis, the Fulton County prosecutor, may argue that to the extent Meadows took actions, he was not taking those actions as Chief of Staff, but to assist Trump’s campaign effort, so the conduct is not covered. Meadows anticipates that arguments, listing in the Notice each of the factual allegations against him in the Indictment, to demonstrate that his actions were as Chief of Staff:

… The charged conduct comprises acts taken by Mr. Meadows, whether in an individual or official capacity, under color of his role as Chief of Staff to the President of the United States. See 28 U.S.C. § 1442(a)(1).

As is apparent on the face of the indictment, as part of his official duties as Chief of Staff, Mr. Meadows arranged meetings for the President at the White House and communicated with state lawmakers and officials. Mr. Meadows went to a site in Fulton County where the Chief Investigator was conducting an audit of the results of the 2020 Presidential election because—and only because—he was serving as Chief of Staff. He wanted to report back to the President on how the audit was proceeding and told him the following day that the Georgia officials were conducting their work in exemplary fashion. Shortly thereafter, Mr. Meadows, in his role as Chief of Staff, arranged a phone call between the President and Georgia officials, including the Secretary of State and the Chief Investigator. These and the other acts that form the basis for the charges against Mr. Meadows all fall squarely within his conduct as Chief of Staff.

Indeed, as explained below, it is clear from the face of the indictment that the charges against Mr. Meadows should be dismissed under the Supremacy Clause. But for purposes of removal, the Court need not make that determination. Mr. Meadows is entitled to remove this action to federal court because the charges against him plausibly give rise to a federal defense based on his role at all relevant times as the White House Chief of Staff to the President of the United States.

Trump may have a more difficult time removing the case since he was a political candidate and his conduct was not as president. But as the Meadows Notice demonstrates, there is a fairly low bar to removal and any “plausible” claim that the conduct charged was in the context of an official federal capacity should suffice. Other defendants who were not serving in any federal capacity at the time would not be able to invoke the statute.

In other news, I had a good long conversation with Tony Katz this morning about the Georgia indictment. (Sorry, no transcript)

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