The ink is barely dry on the indictment of 19 people in Georgia, including former president Donald Trump, for allegedly trying conspiring to overturn the 2020 election, and moves are already being made.
On Tuesday evening, news broke that Mark Meadows, one of the defendants and Trump's former chief of staff, has filed a motion of removal in an attempt to get the charges out of Georgia and into a federal court.
Let the fun begin. Former Trump Chief of Staff, Mark Meadows legal team already submitted motion of removal https://t.co/Vbgnvz2tH6— Rob O'Donnell (@odonnell_r) August 15, 2023
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.”
Given the bias that many suspect Fulton County DA Fani Willis holds, that seems like a smart play and one that has a very real chance of succeeding. For an explanation of what such a motion actually entails, I'll give way to Leslie McAdoo Gordon, who holds expertise in this area.
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
Federalism is an important feature of our Constitutional system; it divides power between the federal govt & the state govts, which sets them a bit at odds w/one another & preserves local issues for local elected officials. It's part of the liberty design of our federal republic.— Leslie McAdoo Gordon 🇺🇸 (@McAdooGordon) August 16, 2023
Was this a major oversight by Willis in her overzealous attempt to take down Trump and everyone who surrounded him during the 2020 election? I don't have the knowledge to make that judgment, but there appears to be ample precedent for a motion of removal in this case, not just for Meadows, but for all the defendants who were also government officials during the time period the indictment covers. That would include Donald Trump, though, he might have a more difficult time if a judge assesses he was acting as a candidate.
As to who would make the decision on the motion (and presumably, motions in the near future unless they join Meadows), it would not be a state judge. Rather, a federal judge would be selected at random to assess each motion and to decide whether to place the case within a federal court or remand it back to the state.
Of course, none of this means the defendants would get everything they want in a federal jurisdiction, but I suspect they'd all rather be anywhere but in Fulton County.