Can Trump’s co-defendants make a federal case out of the Georgia indictment?

In any criminal case, lawyers like to wrangle over what courthouse the case should be tried in, and this issue is often complicated. The Fulton County, Georgia, indictment of former President Donald Trump and 18 co-defendants is no exception.

One of the defendants, former White House Chief of Staff Mark Meadows, has petitioned to remove the case to the federal court where the district court for the Northern District of Georgia sits. Other defendants, including Trump and former Justice Department official Jeffrey Clark, may follow Meadows’s path to removal.

The removal case was assigned to Judge Steve C. Jones, an Obama appointee. Leading legal scholars argue that the removal is unlikely to be successful. Meadows was, according to the indictment, guilty of criminal acts beyond the outer perimeter of anything a White House chief of staff is supposed to do.

So what is the removal jurisdiction of the federal courts?

In 1789, when the Constitution was enacted, only civil cases could be removed to the federal courts. But in 1879, at the height of the Reconstruction Era, Congress, in order to protect the federal government from state interference with its operations, extended removal jurisdiction to criminal cases. Congress passed the statute because of an attempt by one of the states to criminalize the collection of duties by United States officers under the tariff laws.

Under the law, any federal employee may remove a criminal case to federal court if the prosecution is for acts accomplished in the course of their official duties.

There is, in addition, one other requirement: Federal officer removal must be predicated on a “colorable” federal defense. “I didn’t do it” is not enough. There must be some federal law that would be a defense.

One defense might be immunity from prosecution under the supremacy clause of the Constitution, but the defendant must do more than just allege it. The defense must be “colorable” even if it eventually fails. Trump has claimed in the past that he is absolutely immune from state prosecution for all acts he committed while president. Putting the cart before the horse, Meadows has already moved to dismiss the indictment in the federal court before the federal court has even assumed jurisdiction over the matter. His immunity argument is related to, but not necessarily the same as, his removal argument. Both should be denied.

A federal official is not immune from state criminal prosecution “simply because of his office,” but instead must meet these two conditions: 1) the federal official must have been engaged in conduct authorized by federal law or the Constitution (how could Meadows claim with a straight face that interference in the certification of a state election could be so authorized?); and 2) the official must have done no “more than what was necessary and proper” to effectuate his federal duty. (Messing with Georgia’s election results were clearly not part of Meadows’s official duties.)

In the Stormy Daniels case in New York, Trump tried to remove to the federal court, claiming that the payoff to the adult film actress was an exercise of his presidential duties. No, said federal judge Alvin Hellerstein, who remanded the case back to the state court. “Not every act of or on behalf of a federal officer is an act under color of office.”

And the 11th Circuit Court of Appeals (which hears cases from the Northern District of Georgia) has carefully drawn the distinction between an officer who acts in accordance with his official duties and one who acts out of some nefarious purpose, such as “any personal interest, malice, actual criminal intent, or for any other reason than to do his duty.” Such a rogue officer is unlikely to find any healing benediction in the federal court.

So why is Meadows engaging in this legal legerdemain? Is he a stalking horse for Trump? What happens if he succeeds in removing? The prosecutor will still be Fani Willis, unless she is removed by the Republicans in the Georgia legislature. In this unlikely event, they might get a different prosecutor who will drop the case.

If the prosecution survives as a federal case, the substantive statutes that will be tried will be under the Georgia RICO law, same as in the state court. No federal pardon is possible if the case is removed. Georgia Gov. Brian Kemp has no pardon power until five years after completion of the sentence.

Will Meadows find a more sympatico jury pool in the federal court? That is not at all clear.

In 2020, Biden won Georgia by a narrow margin of 12,000 votes. He trounced Trump in Fulton County, however, by just short of 243,000 votes, winning just under 75 percent. Fulton County, which includes Atlanta, is a heavily Democratic district. The Atlanta division of the federal judicial district including Fulton County, which is where Meadows filed his removal petition, consists of 10 counties, including Fulton. It is from these 10 counties that the jury pool will be drawn. And in these 10 counties, Biden defeated Trump handily in nine out of 10 with a vote share of 70 percent.

It is worth a roll of the dice for Meadows that he might get a more red than purple jury in the Northern District of Georgia, but the odds are long. All Meadows might achieve with federal jurisdiction is delay. If Judge Jones decides to remand the case to state court, Meadows can appeal to the conservative 11th Circuit. This will take time. And, if the case ends up being reviewed by the Supreme Court, it might take even longer.

Judge Jones set Aug. 28 as a hearing date for Meadows’s petition for removal. Meanwhile, the state prosecution will continue in Georgia.

James D. Zirin, author, and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.