Mark Meadows is one of the defendants in the Georgia state criminal case brought by Fulton County District Attorney Fani Willis against President Trump and a cast of thousands. Meadows is Trump’s former chief of staff and the two crimes with which he is charged arise from his service to Trump. Meadows has sought removal of the charges against him from state to federal court. The 14-page Meadows notice of removal has been posted online here.
Judge Steve Jones held a hearing on the Meadows removal notice this past Monday in the United States District Court for the Northern District of Georgia. Judge Jones is an Obama appointee. Other defendants in the Georgia have also sought removal to federal court and each will be dealt with by the same judge applying the same provisions of law as to the underlying facts involving each defendant’s official duties.
Referring to the issue of removal, Jonathan Turley observed that “[t]here are good arguments on both sides of the motion” (and also takes up other matters involving the epic scale of the cast). Turley adds that the political character of Meadows’s alleged actions works in Willis’s favor against removal:
Turley does not quote the applicable removal statute. The present federal officer removal statute is found in 28 U.S.C. § 1442(a)(1). It authorizes the removal of cases commenced in state court against “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof . . . for or relating to any act under color of such office.” Patricia Rauh’s ABA backgrounder on the federal officer removal statute states: “Where the defendant is a federal employee, the statute is fairly straightforward.”
Would that it were so in this case. Contrast the Meadows notice with the proposed amicus brief filed by Judge Michael Luttig and other Trump-hostile former officials. Like the Meadows notice, it addresses relevant issues bearing on official duties and the existence of not of a federal defense to the state charges that Judge Jones will have to decide individually as to Meadows and the other former federal officials who seek removal.
The hearing held by Judge Jones was evidentiary in nature. Meadows himself testified at the hearing in support of removal. Secretary of State Brad Raffensperger and former Trump campaign attorney Kurt Hilbert were called by the prosecution. News accounts have focused on Meadows’s testimony, which took some four hours. The AP story is here.
On Tuesday Judge Jones requested supplemental briefing on the following issue:
Count 1 of the Indictment (pertaining to Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-(c)) contains a number of overt acts attributed to Mr. Meadows. Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office, be sufficient for federal removal of a criminal prosecution under 28 U.S.C. § 1442(a)(1)?
I don’t know the answer to that question. My purpose here is to bring readers up to speed on the status of the case and to preview what might come next.
If Judge Jones decides that the removal statute does not apply to Meadows (or any other defendant who raises it), he will remand the charges in issue to state court. Is such an order appealable? Unlike the merits of the removal motion, this is a question I think I can answer.
Under 28 U.S.C. § 1447(d), “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” Because removal in this case is sought under section 1442(a)(1), a remand order would be immediately appealable to the Fifth Circuit.
At page 8, the Meadows removal notice reflects the continuing progress of the state criminal charges against him toward trial. Willis apparently now seeks an October 23 trial date for all defendants. The removal notice does not by itself stay the state proceedings. The state case remains headed down the tracks, but it may be subject to derailment as to Meadows and/or some other defendants.