Removal of Georgia Action to Federal Court

[Big RR]

I've been reading some lately about the efforts of Meadows et al. trying to remove the Georgia action to federal court. The benefits of this aside, it does concern me that they might be successful in this. As I understand Meadows' argument, states are forbidden to sanction federal officials in the performance of their executive (or legislative or judicial functions), and the things Meadows is accused of--setting up phone calls, traveling to Georgia to find out the facts (sure, he was putting the arm on them, but prove it), etc. were within the purview of his job. Whether this was actually for extortion (or another crime) which is clearly not within the purview of his job, but that is a question of fact and I could see the courts erring on the side of federal rights. The reverse argument is that these functions were due to Trump's campaign activities, which are not federal activities (indeed, I am not sure a federal employee, even a chief of staff can help his boss in a campaign while on the federal "clock") so it could be viewed as actions outside of his duties, but again, the courts could punt on a question of fact, with Meadows presenting the ridiculous, but ultimately possible, explanation that he did not know why he was setting up the calls, and that he went to Georgia to investigate concerns of election fraud before they were referred to Justice. It just might be enough to make the federal courts claim jurisdiction. i

But what really concerns me--Trump does not really have the same defenses--his actions were part and parcel of his campaign activities and his case should remain in Georgia, but if the other cases are transferred to the federal government, might the federal courts decide that it suits justice better to try all in the same forum (can they do so>). I don't recall much of my federal jurisdiction course all those years ago, but this is an interesting dilemma. Perhaps some of those on this forum can shed more light on the state of the law here. I clearly think Georgia should have the right to prosecute and try breaches of its law in its own courts--but this may not happen.

And, FWIW, consolidating all of the actions in the federal courts makes an ultimate pardon or other global settlement much easier. I still think, sadly, that's where we are headed, but a case in Georgia made that much more difficult (which is another,practical reason why I think this should proceed in the state courts).

[Bicycle Bill]

If it gets shifted to a federal court, my concern then runs to the possibility that if Trump or any of his other Republican boot-lickers should win the 2024 election, they could then issue presidential pardons to the defendants, shove the whole thing under the rug, and get right back to fascist shenanigans as usual.

-"BB"-

[Big RR]

I agree, and not necessarily just the republicans; I have seen more and more calls for pardons for "the good of the nation" ala Gerald Ford. I hope it doesn't happen, but I am not holding my breath.

Also, the federal courts might likely delay the trial more, and it will likely not be televised, so most people will rely on accounts of the evidence presented.

[BoSoxGal]

I just don’t see how Meadows can successfully argue that his actions on behalf of Trump related to the election fall under the umbrella of his duties as chief of staff because that would be a direct violation of the Hatch Act.

I am really hoping the court sees through this. They ALL need to go on trial before a Fulton County jury.

[Big RR]

I agree BSG, and share in your hope. But if I were f defending Meadows, I'd argue Trump asked him to investigate potential voter fraud in Gerogia and asked him to do a preliminary investigation and set up a few phone calls. Part of his duties? Depends who the courts believe, but they coudl punt and say it is a decision for the fact finder, so they are removing it from Georgia. I don't think that violates the hatch act, merely an execuive investigation, which is the province of the executive. I hope it doesn't work, but it may.

And as for Trump, he has no such argument to remove since it is all tied to his bid for reelection, but would the courts do so if all other cases were moved to the federal courts? I'd like to think no, but I am not sure. That's the real problem.

[Crackpot]

Most of what I have heard claims Meadows doesn’t have much of a chance as elections fall entirely under state jurisdiction

[Scooter]

If it gets shifted to a federal court, my concern then runs to the possibility that if Trump or any of his other Republican boot-lickers should win the 2024 election, they could then issue presidential pardons to the defendants, shove the whole thing under the rug, and get right back to fascist shenanigans as usual.

-"BB"-

Which is precisely the reason they want it to go to federal court. Do you really imagine any of these clowns actually cares about what the law requires?

[Sue U]

Meadows's removal is legal malarkey. The whole purpose of the Hatch Act is to prohibit federal government employees from doing anything in their official capacity to affect the outcome of an election. It is beyond disingenuous to suggest that Meadows could have had any non-illegal role in "investigating" imaginary "voter fraud" two months after the election was concluded, after all recounts were finalized, after 60+ court cases were dismissed, after the states had certified their electors, and where the actual, specific and only conceivable purpose of continuing to pressure Georgia officials was to overturn the election results. And as Crackpot correctly notes, the manner of conducting elections is entirely a matter of state law (to the extent that state law is within the bounds of the federal constitution), so there is absolutely no role for the President's Chief of Staff in any kind of "enforcement" of state election law.

Because federal courts have limited jurisdiction, the court is obliged to independently examine the basis for jurisdiction in every case. The conduct for which Meadows is being prosecuted, as described in the criminal indictment, clearly falls so far outside the bounds of official duties that there is simply no "question of fact" on that issue for a jury to decide. The only fact question is whether Meadows engaged in the acts alleged, in violation of Georgia law (and only incidentally the Hatch Act).

I have actually litigated "federal officer" removal cases. Quoting one of my own briefs:

Removal statutes are to be strictly construed against removal, and all doubts are to be resolved in favor of remand. Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941); Brown v. Francis, 75 F.3d 860, 865 (3d Cir. 1996); Boyer, 913 F.2d at 111; Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). Furthermore, on a plaintiff’s motion for remand, the burden remains on the removing defendant to show why the action should not be remanded, and any lingering doubts must be resolved against the proponents of the federal forum. See, e.g., Newmark & Lewis, Inc. v. Local 814, Internat’l Brotherhood of Teamsters, 776 F. Supp. 102, 105 (E.D. N.Y. 1991) (removing party must establish right to federal forum by “competent proof”); Pierson v. Source Perrier S.A., 848 F. Supp. 1186, 1188, (E.D. Pa. 1994) citing Abels, supra (party asserting federal jurisdiction bears burden of showing that case is properly before the court at all stages of litigation).

The key issue under the federal officer removal statute is whether the acts complained of were at the direction of the federal government or otherwise "under color of such office." Because the acts complained of here are by definition prohibited to any federal office-holder, the removal statute simply does not apply to the state prosecution. The fact that Meadows has virtually confessed to the acts should not only doom his removal bid, but should also result in a separate federal prosecution under the Hatch Act.

[Burning Petard]

So can the federal charges against Matthews be amended to include self-confessed Hatch Act violations? I am assuming that his statement in presenting his case for the federal trial on state criminal charges could be used as evidence in the other federal trial(s) Or would the 5th amend exclude those statements? Is there a distinction between what he personally said and what his lawyer said, speaking for him?

The Law is always a weird thing.

snailgate.

[Big RR]

Sue--I sincerely hope you are right, but I do think there are a variety of federal crimes that are implicated in election fraud--indeed, the FBI can investigate such crimes, so why can other parts of the executive not investigate? Sure, it is disingenuous (or more, accurately, "malarkey" as you point out), but I do think it gives the courts a colorable out should the judge want to remove the action from Georgia. I do recall learning, as you state, that remand to the state court is to be preferred, but this is a strange case, and strange results should not be unexpected.

I think there are many in the federal government on both sides, not to mention in the judiciary, who would prefer to see these cases go away "for the good of the country" (interpret that as you will). I have read many op ed pieces from the left and right advocating for a pardon (for that same bullshit reason), and consolidating the actions makes this easier. As disingenuous as the argument is, it would not surprise me if the action still were removed, nor that a way to stop the trials (via pardons or whatever) is eventually implemented. As I have said many times, the last thing most politicians would want is to see themselves subjected to civil or criminal liability after they leave office, and the Trump cases set a bad precedent and makes this easier (in the same way that the Clinton impeachment did for impeachment actions three decades; it is pretty interesting that we have only had one impeachment trial in the first two centuries of our existence, and then three in the past three decades--this could do the same for criminal prosections after leaving office). They would prefer it go away quietly and the status quo be maintained; independent state actions dash this hope. I would hope that the courts have enough backbone to resist this pressure, but I am not all that optimistic. We'll see what happens.

[Sue U]

Who is Steve Jones, the judge who’ll decide whether to move Fulton County defendants’ cases to federal court?

By Piper Hudspeth Blackburn, CNN
Updated 6:43 AM EDT, Mon August 28, 2023

CNN — Federal district Judge Steve Jones of the Northern District of Georgia will hear requests from three of the 19 defendants hoping to move their Georgia election subversion cases out of state court.

The group, which includes former Trump White House chief of staff Mark Meadows, is trying to get the case dismissed under federal law – a determination that may impact Fulton County District Attorney Fani Willis’ case against former President Donald Trump and others. Meadows and others will present evidence about whether to move the case, while the judge has allowed the state court case to proceed in the meantime.

Jones, a Barack Obama appointee, was confirmed by the US Senate in 2011 by a 90-0 vote. A former Superior Court judge, he grew up in Athens, Georgia, and graduated from the University of Georgia School of Law in 1987.

So far, Jones has shown that he would like to avoid a circus while not giving short shrift to Meadows’ arguments, said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law. The orders Jones has already issued have hewed tightly to the relevant statutes and case law, and he has moved the proceedings along very efficiently.

Jones is “by the book, which includes quickly and quietly,” Vladeck said.

Jones has overseen high-profile cases before.

In July, he declined to toss three lawsuits claiming that Georgia’s congressional and legislative districts were drawn in a way that discriminates against Black voters. He slated a trial on the matter for September.

In 2020, Jones blocked the state’s six-week abortion ban, which later took effect after the Supreme Court overturned Roe v. Wade. In 2019, he rejected an attempt by a voting rights group to restore to the rolls 98,000 Georgia voters who had been removed after being classified as “inactive” after a new state law took effect.

In that case, Jones found that the 11th Amendment of the Constitution and the principles of sovereign immunity “do not permit a federal court to enjoin a state (or its officers) to follow a federal court’s interpretation of the State of Georgia’s laws.” Jones also determined that the group, Fair Fight Action, failed to show that its claim had a substantial likelihood of success.

Next, Jones will weigh movement in the case in which Trump is accused of being the head of a “criminal enterprise” that was part of a broad conspiracy to overturn his electoral defeat in Georgia. Trump, who faces 13 charges, is also expected to try to move the case to federal court, according to multiple sources familiar with his legal team’s thinking.

CNN’s Paul LeBlanc and Tierney Sneed contributed to this report.

Source: CNN, a/k/a "Fake News."

ETA:

Honestly, if I were a federal judge, I'd want this case out of my courtroom the fastest way possible rather than put up with all the nonsense that will inevitably ensue, and bouncing it on jurisdiction is a quick, clean way to do it. The defendants could take it up to the 11th Circuit and then petition SCOTUS, but the case would still be proceeding in state court all the while. And even though the 11th Circuit is by-and-large pretty conservative (depending on what panel you draw), they have not been kind to the Trump crew's arguments so far (see Mar-A-Lago dox case).

[Big RR]

From what I've read of Meadows' testimony today (and it only was a small account), the trasfer motion seems more likely to be doomed to failure. It seems his argument is that his official duties were to be sure Trump had what he needed to carry out his duties as president--and these inquiries and set up conferences were part of that (“I dealt with the president’s personal position on a number of things. It’s still a part of my job to make sure the president is safe and secure and able to perform his job,”). Pretty ridiculous really--would it, e.g., include engaging teenage prostititutes so rump could relax or getting him illegal drugs? I'd like to read more, but let's hope the court sees it the same way.

[Sue U]

So can the federal charges against Matthews be amended to include self-confessed Hatch Act violations? I am assuming that his statement in presenting his case for the federal trial on state criminal charges could be used as evidence in the other federal trial(s) Or would the 5th amend exclude those statements? Is there a distinction between what he personally said and what his lawyer said, speaking for him?

The Law is always a weird thing.

snailgate.

The only charges brought against Meadows so far are the state law charges in the Georgia case. It would be up to federal prosecutors in DC to decide whether to bring a Hatch Act case. My bet is they won't -- not because he is innocent, but because as a matter of prosecutorial discretion the violation doesn't warrant the expenditure of resources for a full-blown investigation and trial, particularly since he's being prosecuted in Georgia for (roughly) the same thing. However, if he were ultimately indicted on other substantive charges, I would think a Hatch Act count would be included as well.

Anything Meadows says in court under oath is certainly fair game as evidence in a subsequent prosecution; he didn't have to take the stand and he could have refused to testify under the Fifth Amendment. What he says outside of court may or may not be admissible under the federal rules of evidence for hearsay and impeachment. I would think that what his lawyer says is generally not attributable to Meadows personally, unless it's part of a representation made to the court, but I have not actually researched this question.

[Sue U]

Oh hai, Judge Jones, whassup? You been reading my posts here at Plan B?

SATURDAY, SEPTEMBER 09, 2023

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

Source: https://prawfsblawg.blogs.com/

And I will reiterate:

The defendants could take it up to the 11th Circuit and then petition SCOTUS, but the case would still be proceeding in state court all the while. And even though the 11th Circuit is by-and-large pretty conservative (depending on what panel you draw), they have not been kind to the Trump crew's arguments so far (see Mar-A-Lago dox case).

My bet is that the 11th Circuit will affirm and SCOTUS will deny a petition for cert (if filed) -- not least because SCOTUS has enough issues already with certain justices looking like partisan hacks.

[Joe Guy]

And, FWIW, consolidating all of the actions in the federal courts makes an ultimate pardon or other global settlement much easier. I still think, sadly, that's where we are headed, but a case in Georgia made that much more difficult (which is another,practical reason why I think this should proceed in the state courts).

I read somewhere a while back that even if Trump's Georgia case is moved to federal court, if convicted, the State charges against him would not be eligible for a presidential pardon.

Is that accurate?

[Sue U]

I read somewhere a while back that even if Trump's Georgia case is moved to federal court, if convicted, the State charges against him would not be eligible for a presidential pardon.

Is that accurate?

Yes, these are state crimes prosecuted under state law. Removal to federal court essentially only changes the courtroom, judge and jury pool for trial. Had Meadows been successful in asserting "federal officer" status to support removal, he could have then moved for dismissal based on the federal officer defense -- i.e., that he was immune from prosecution because he was merely conducting the duties of his office as obliged by the federal government in seeking to subvert Georgia's election.

[Big RR]

Well Sue, I'm very happy to have been wrong; let's see how the appeals work out.

[Crackpot]

So What’s Dershowitz’s opinion on this? (I’ve seen some articles but I need someone with the ability to translate legalese to fil me in.

[Sue U]

So What’s Dershowitz’s opinion on this? (I’ve seen some articles but I need someone with the ability to translate legalese to fil me in.

I offer a free legalese translation service to all Plan B members. But at this point, why would anyone want Dershowitz's opinion on anything?

[Big RR]

Indeed; as Romeo said of Mercutio, Dershowitz "A gentleman ... that loves to hear himself talk, and will speak more in a minute than he will stand to in a month. "