Former White House Chief of Staff Mark Meadows is trying again to move the Fulton County election interference case against him to federal court, this time before a three-judge panel at the 11th U.S. Circuit Court of Appeals.
The jurists are slated to hear 15 minutes each of oral argument on Friday from Meadows’ attorneys and the Fulton County District Attorney’s office.
Meadows is invoking the 234-year-old federal removal statute, which allows federal officials charged with state crimes to transfer them to federal court if the alleged criminal behavior was carried out as part of a person’s official duties. In his appeal, Meadows is arguing that he was acting as then-President Donald Trump’s chief of staff when he committed the alleged conduct.
Trump, Meadows and 13 other defendants stand charged with racketeering and other felonies in the election interference case brought by Fulton County District Attorney Fani Willis.
Moving proceedings to federal court would get the Republican a broader — and slightly more conservative — jury pool, as well as a potentially a more favorable forum for arguing he’s immune from charges. There are also no cameras in federal courtrooms, unlike in Fulton Superior Court.
To transfer the case, a defendant must show they were a federal official at the time of their alleged crimes, prove the alleged criminal activities occurred under their official duties and provide a plausible federal defense.
“This ... is a criminal prosecution of the chief of staff based on actions taken in the White House while discharging his official duties,” Meadows’ brief says. “Meadows did not volunteer for or seek to inject himself into the events that give rise to this case. He is here solely because he served as chief of staff.”
The Fulton DA’s office disagreed. “(Meadows) and his co-defendants engaged in activities designed to accomplish federal meddling in matters of state authority,” the office wrote in response to Meadows’ appeal.
Moreover, the DA’s office said, when Meadows testified at an August hearing before U.S. District Court Judge Steve Jones, he “admitted to engaging in acts that under any reasonable analysis constitute campaign activity outside his role as a federal employee.”
In August, Meadows was charged with two felonies: RICO and soliciting Secretary of State Brad Raffensperger to violate his oath of office during the infamous Jan. 2, 2021, phone call with Trump. During the call, the then-president asked the secretary to “find” him 11,780 votes, one more than was needed to overturn Georgia’s results.
In a September ruling, Jones said Meadows didn’t meet the legal burden for demonstrating the case should be removed out of Fulton County. Jones ruled that while Meadows was clearly a federal officer when the alleged criminal activities occurred, he was not acting in his federal capacity in bolstering Trump the candidate.
Meadows is hoping the conservative appeals court is more receptive and will overturn Jones’ decision. But his randomly chosen three-judge panel has two Democratic appointees.
The judges hearing Meadows case are: Chief Judge Bill Pryor, appointed to the bench by President George W. Bush and who was on Trump’s short list to fill a U.S. Supreme Court vacancy; Robin Rosenbaum, an appointee of President Barack Obama who’s a member of the court’s liberal wing; and Nancy Abudu, a former ACLU attorney put on the bench by President Joe Biden in June.
How the three-judge panel decides the appeal likely won’t be the last word. Whichever side loses is expected to appeal the case up to the U.S. Supreme Court.
Pate case
The three-judge panel recently added a new wrinkle to Meadows’ appeal. It cited a ruling the whole court issued in October regarding a South Georgia man who described himself as the heir to the kingdom of Morocco and who claimed a $2.7 million tax return. even though he had failed to file federal tax returns over a number of years.
When the IRS warned Timothy Pate he could be fined for filing frivolous returns, he continued to file similarly frivolous returns, claiming millions of dollars in refunds and refusing to pay the penalties he had racked up along the way, the 11th Circuit opinion said.
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Pate filed a number of liens against the properties of current and former IRS officials, four of which were the basis of the 11th Circuit ruling. Pate filed two $33 million liens against John Koskinen, just months after he completed his tenure as IRS Commissioner. Pate also filed two $15 million liens against former Treasury Secretary Jacob Lew.
A federal grand jury indicted Pate for filing false retaliatory liens against federal officials, and he was convicted at trial and sentenced to 300 months in prison. Pate challenged his conviction by arguing that because Koskinen and Lew were no longer federal officials at the time he filed the liens, he committed no federal crime.
In its ruling, the 11th Circuit threw out Pate’s convictions because Koskinen and Lew were no longer federal employees when the liens were filed. Notably, Pryor, Rosenbaum and Abudu joined the majority in that 9-3 opinion.
What must have caught the attention of the three judges hearing Meadows’ appeal is that there is a question as to whether the removal statute allows a former federal official -- as opposed to a current one -- to try and transfer a criminal case from state to federal court.
On Oct. 17, just three days after issuing that ruling, the 11th Circuit instructed lawyers for Meadows and the DA’s office to file additional briefs and address the question of whether the court’s analysis in Pate permits a “former” federal officer to remove a criminal prosecution from state to federal court.
Not surprisingly, Meadows’ lawyers assert the Pate decision “has no material impact” on the former chief of staff’s appeal. But the Fulton DA’s office contends that because of the Pate ruling, “it is now even clearer than before that former federal officers may not seek to remove their cases.”
Four other defendants, including onetime Justice Department official Jeffrey Clark and three Georgia Republicans who served as Trump electors have appealed similarly unfavorable rulings from Jones. Those appeals are pending before the 11th Circuit.
If any of the defendants are successful, it’s possible that the cases for all 15 remaining defendants moves to federal court.
