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Will Mark Meadows succeed in moving his Georgia state prosecution to federal court? The former White House chief of staff shouldn't count on it, but it's possible, which is more than could rightly be said about Donald Trump’s failed attempt to take his New York state prosecution federal.
Meadows made his case during a hearing Monday in a federal court in Georgia. As we wait for the judge to rule, let's compare Meadows' effort to his former boss's gambit in New York. This can help explain why Meadows has an outside shot but Trump really didn’t — even if Meadows doesn’t ultimately succeed, either.
In terms of the legal standard, current and former federal officials (or those acting under them) can move their cases from state to federal court if the conduct at issue relates to acts taken under such federal office and there’s a "colorable" federal defense.
A president can’t pardon a state case just because it gets removed to federal court.
In Trump’s case, the federal judge in New York easily disposed of his argument that he had hired Michael Cohen, who paid hush money to Stormy Daniels ahead of the 2016 election, “as a direct result of President Trump’s role as President of the United States and his obligations under the Constitution, and in order to separate his business affairs from his public duties.”
The problem, the New York judge explained in rejecting removal in July, is that Trump offered no evidence supporting that contention and chose not to testify or call Cohen to the stand. That made it easier for the judge to reach the unremarkable conclusion that an alleged hush money cover-up “does not reflect in any way the color of the President’s official duties.”
Meadows, on the other hand, notably testified Monday in support of his removal claim. That is, he did work that Trump didn’t. As an example of how that played out at the hearing, NBC News reported:
Anna Green Cross, a lawyer for the district attorney’s office, asked Meadows on cross-examination what, if any, federal goal he was furthering by taking part in meetings and calls challenging the election results. Meadows said he believed the federal purpose was to ensure that there were free and fair elections in the U.S.
Now, just because Meadows testified doesn’t mean he will win removal. It remains to be seen whether the federal judge in Georgia, Barack Obama-appointee Steve Jones, is convinced by Meadows’ testimony. But the fact is that Meadows gave the judge something to work with, even if it’s a weak something that's ultimately unavailing.
As for whether there’s a “colorable” federal defense, both Trump and Meadows have raised Supremacy Clause immunity. That clause of the Constitution says federal law is the supreme law of the land. Federal officers can get immunity for conduct that’s necessary and proper to carry out their duties.
In his failed New York bid, Trump claimed immunity in arguing that his decision to separate his personal business from his public duties “derived from his position as President” and was “rooted in constitutional concerns.” The judge rejected that claim out of hand as well, calling it conclusory because Trump didn’t present evidence to support it or explain how hiring and paying a personal lawyer to handle personal business carries out a constitutional duty.
In Meadows’ case, Fulton County District Attorney Fani Willis has raised several arguments against Meadows’ immunity claim, including by pointing to his admission that his activities were “unquestionably political” and therefore, Willis’ team wrote ahead of the hearing, “by definition, outside the lawful scope of his authority as Chief of Staff.”
But it’s important to keep in mind that Meadows doesn’t need to raise a defense that will ultimately win the case for him — just one that’s plausible enough at this stage of the litigation. Of course, it's possible the judge finds Meadows failed to meet even that lower standard.
At any rate, it’s also important to remember that winning removal could be just a slight victory for Meadows or anyone else who succeeds in taking their state case federal.
That’s because it’s still a state case, just one that would proceed in federal court. The broader jury pool in federal court may be slightly more beneficial for a Republican defendant, but there's one big aspect that doesn't change: A president can’t pardon a state case just because it gets removed to federal court.
The ruling on Meadows' removal claim could come soon. The judge requested additional filings from the parties due Thursday, so we'll be looking for a ruling after those briefs are in. And while it won't be too surprising if Meadows' attempt meets the same doomed fate as Trump's in New York, if Meadows does win removal in Georgia, that’s not automatically a sign he’ll win the case overall.