Georgia prosecutors urged a federal judge to reject former Trump White House chief of staff Mark Meadows’s motion to hear state racketeering charges in federal court even if the judge finds a single overt act the defendant committed was protected by federal law.
The late Aug. 31 filing came in response to an Aug. 29 order by Judge Steve C. Jones of the Northern District of Georgia. The judge was appointed in 2011 by President Barack Obama.
The order came after the judge held a hearing on Aug. 28 at which he heard several hours of testimony from witnesses, including Mr. Meadows and Georgia Secretary of State Brad Raffensperger, a Republican.
In the order, Judge Jones asked attorneys for the defense and the prosecution to brief him on whether he could hear the case in federal court if he determined “at least one (but not all) of the overt acts” Mr. Meadows is accused of in the indictment “occurred under the color of Meadows’s office.”
Judge Jones gave the attorneys acting for Mr. Meadows and Fulton County, Georgia District Attorney Fani Willis, a Democrat, a deadline of 5 p.m. on Aug. 31 to respond to the court.
The case is being closely watched because this is the first time that substantive arguments have been made in court in any of the four criminal cases that have been brought against former President Donald Trump and his fellow defendants this year.
Some liken the motion for so-called removal to federal court to a mini-trial for President Trump and his co-defendants and speculate that the treatment Mr. Meadows receives in federal court will be a bellwether for how the various Trump-related prosecutions will proceed.
President Trump, Mr. Meadows, and 17 co-defendants were indicted by a state grand jury in Fulton County on Aug. 14 over the former chief executive’s challenge to the election.
Prosecutors have focused on what was said in a Jan. 2, 2021, telephone conversation between President Trump and Mr. Raffensperger in which they discussed, among other things, the vote count in the state and what options the two officials had available to them. Prosecutors say President Trump and others unlawfully attempted to interfere in the electoral process, an accusation he adamantly denies.
Mr. Meadows filed a motion to remove the Georgia charges to federal court. He argues that because his involvement in the disputed presidential election in Georgia was related to his job as a White House official, his case should be tried in federal court.
Mr. Meadows is arguing he is immune from state prosecution under the U.S. Constitution’s Supremacy Clause, which elevates federal law over state law. In other words, Mr. Meadows contends that he cannot be prosecuted in state court because whatever he did, it was done in his official capacity as a federal officer, and he has federal defenses available to him.
The legal language in the indictment (pdf) specifically alleges that on Jan. 2, 2021, Mr. Meadows “unlawfully solicited, requested, and importuned … Raffensperger … to [commit] the felony offense of Violation of Oath by Public Officer … by unlawfully altering, unlawfully adjusting, and otherwise unlawfully influencing the certified returns for presidential electors[.]”
Mr. Meadows and all the defendants in the case are accused of violating the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act from Nov. 4, 2020, which is the day after the presidential election, to Sept. 15, 2022. The indictment states that the defendants “unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such [illegal] enterprise through a pattern of racketeering activity[.]”
In its 17-page filing, Ms. Willis’s office wrote that Mr. Meadows is being prosecuted not because of any act committed “under color of his office,” but because he “knowingly and willfully entered into an agreement to violate the Georgia RICO Act.”
“The overt acts alleged in the Indictment, as with any indictment charging a violation of a conspiracy statute containing an overt act requirement, are required to be pled only to ‘demonstrate the conspiracy was actually ‘at work,’” the document says, citing state and federal precedents.
Mr. Meadows is charged in Count 1 “with agreeing to join a conspiracy that planned to overturn the lawful results of an election in Georgia.”
“A scenario where at least one, but not all, of the overt acts attributed to the defendant in Count 1 of the Indictment occurred under color of office would not be sufficient to authorize removal because it would not demonstrate that his agreement to join in the RICO conspiracy described in Count 1 was an act ‘for or related to’ his duties as Chief of Staff.”
“While Georgia RICO, unlike federal RICO, requires that one of the conspirators commit an overt act, there is no requirement that the defendant himself commit an overt act because ‘each actor in a conspiracy is responsible for the overt actions undertaken by all the other co-conspirators in furtherance of the conspiracy,’” the document states, citing multiple state precedents.
“Where the evidence before the Court and the defendant’s own admissions demonstrate that his conduct was not authorized by federal law or ‘no more than what is necessary and proper’ for the performance of his duties, the defendant cannot meet his burden, and his Notice of Removal must fail,” the document concludes.
Mr. Meadows’s attorney, George J. Terwilliger III of McGuire Woods in Washington, wrote in an 18-page filing for his client that the federal court must take up his client’s case if only one overt act is even remotely connected to his client.
“Statutory text, binding precedent, and hornbook law confirm that a prosecution is removable if any part relates to an ‘act under color of [federal] office,” the document states. “Hornbook law,” a term often used interchangeably with “blackletter law,” refers to long-established and accepted legal principles.
“Removal is thus required if at least one overt act charged has ‘a connection or association,’ … to even ‘the outer perimeter of [Mr. Meadows’s] line of duty,” the paper states, citing a federal legal precedent.
The wording of the Federal Officer Removal Statute at 28 U.S. Code section 1442 “shows that the case would be removable if some but not all of the charged conduct related to Mr. Meadows’s official duties.”
The removal statute “traces its roots to the War of 1812,” according to the Lawfare Institute.
“During the conflict, Congress deployed federal custom[s] officers to enforce an unpopular trade embargo with the United Kingdom. State prosecutors charged these tax collectors with local crimes in hostile state courts.”
An 1815 law authorized customs officers to remove such prosecutions from state to federal courts, where they were thought more likely to receive a fair trial. The statute expired but was later resurrected and expanded.
The legal document continues, “Removal is also required, even if the State has charged some acts beyond Mr. Meadows’s official duties, because what controls is Mr. Meadows’s articulation of his federal defense, not the State’s articulation of its state charges.”
Allegations of 8 Overt Acts
Eight overt acts are attributed to Mr. Meadows in the indictment.
An event referred to as Act 19 was discussed at the removal hearing on Aug. 28.
It was a reference to a December 2020 meeting with White House staffer John McEntee in which President Trump and Mr. Meadows allegedly asked for “a memorandum outlining a strategy for disrupting and delaying the joint session of Congress on January 6, 2021.” The strategy involved having Vice President Mike Pence “count only half of the electoral votes from certain states and then return the remaining electoral votes to state legislatures,” in the words of the indictment.
Mr. Meadows said at the removal hearing he didn’t remember this act and would have been surprised if he had been involved in it because it was the kind of thing that would have gone to White House counsel and Mr. McEntee, who dealt with personnel matters, was not a lawyer.
“Me asking John McEntee for this kind of a memo did not happen,” Mr. Meadows told the federal court.
Act 5 is meeting with Michigan state lawmakers on Nov. 20, 2020. Act 6 is texting a Pennsylvania federal lawmaker on Nov. 21, 2020. Act 9 is meeting with Pennsylvania legislators at the White House on Nov. 25, 2020, to discuss holding a special session of the Pennsylvania General Assembly.
Act 92 is the allegation that Mr. Meadows attended a signature match audit in Cobb County, Georgia, on Dec. 22, 2020, where he was prevented “from entering into the space where the audit was being conducted.”
Act 93 is the allegation that Mr. Meadows arranged a Dec. 23, 2020, telephone call in which President Trump “falsely stated that he had won the November 3, 2020, presidential election in Georgia ‘by hundreds of thousands of votes.’”
Act 96 is the allegation that Mr. Meadows sent a text message on Dec. 27, 2020, to a Georgia election official asking, “Is there a way to speed up Fulton county signature verification in order to have results before Jan 6 if the trump campaign assist [sic] financially.”
Act 112 is the allegation that on Jan. 2, 2021, Mr. Meadows “committed the felony offense” of soliciting Mr. Raffensperger to violate his oath of office by affecting the election results.
It is unclear when Judge Jones will rule on the motion.
The judge said at the conclusion of the hearing on Aug. 28 that he would attempt to issue a ruling before Sept. 6, but added that if he failed to do so, Mr. Meadows would have to report to state court in Fulton County, as required, on that day to be arraigned.
This article by Matthew Vadum appeared Sept. 1, 2023, in The Epoch Times.
Photo: Former Trump White House Chief of Staff Mark Meadows in National Harbor, Maryland, on Feb. 23, 2018. Photo by Gage Skidmore, CC BY-SA 2.0.