Trump may try to move the Fulton County criminal case to federal court. Here’s why
CNN
By Devan Cole, CNN
(CNN) — Just hours after former White House chief of staff Mark Meadows was dealt state charges accusing him, along with 18 other defendants including Donald Trump, of taking part in a broad criminal conspiracy to overturn Georgia’s 2020 election results, he mounted an effort to move his case to federal court.
The former president is also expected to try to move the case to federal court, according to multiple sources familiar with his legal team’s thinking.
The attempt to transfer his case from the Superior Court in Fulton County, Georgia, to the federal court for the US Northern District of Georgia – a process officially referred to as “removal” – is the first in what is expected to be a series of major pre-trial issues District Attorney Fani Willis must navigate as she pursues convictions against the 19 defendants.
Successfully transferring their cases to federal court could provide some key advantages.
For starters, litigating the effort could help delay things, a strategy Trump has employed time and time and time and time again.
Should the case actually go to trial in the federal court, Trump and Meadows or others could end up with a jury pool more sympathetic than the one they might get from around Atlanta, where the state courthouse for this case is based. The district that includes Fulton County also includes the heavily Republican northern part of the state.
And if the case is removed to federal court and goes to trial, the limits of Georgia’s RICO statute – which has been used aggressively and successfully by Willis – could be under the microscope of a federal judge, who would be able to field novel legal challenges to it by a defendant.
“There’s very few cases in Georgia interpreting the RICO statute,” said Andrew Fleischman, a Georgia criminal defense attorney, adding that a successful removal in this case would allow a federal judge to “ask a bunch of questions” about the 1980 state law.
Other advantages include the fact that unlike the Fulton County courtroom where the proceedings are expected to unfold, cameras are not allowed in federal courts, something that could be advantageous for Trump, who is running for president again.
Trump and Meadows could also argue in federal court that they are protected because their efforts were part of their official duties as president and White House chief of staff, respectively.
Major questions loom
Some major questions over the removal possibility loom large, including whether a successful removal bid would transfer the entire case of 19 people to federal court or if it would allow the defendant to sever their case from the others, with some remaining in state court.
Just as with the criminal case charging people with trying to overturn an election, there is very little precedent here for judges to follow.
While there have been ample removal proceedings in civil cases, and the case law in that scenario is very well established, “criminal removal is very rare – especially in cases with multiple defendants,” said Steve Vladeck, a CNN Supreme Court analyst and University of Texas School of Law professor, who clerked for the 11th US Circuit Court of Appeals, which covers Georgia.
Clark Cunningham, a law professor at Georgia State University, said he believes “the whole indictment moves as one.”
“And of course, that’s going to be fine with the other defendants, they would rather be in federal court. They would rather have things move slowly. The question would be would the district attorney then try to sever out the people that were not federal (employees),” he said. “Those things remain to be seen.”
Willis said on Monday that she plans to try the 19 defendants together, so fighting the removal request will likely be a top priority for her office in the coming days and weeks. That alone could upset her hopes to bring the case to trial next March.
Meadows’ filing
Meadows, in a court document filed Tuesday afternoon, argued that Willis’ case against him should be transferred to district court that includes Fulton County because the alleged conduct of his that creates the basis of Willis’ charges was done as part of his job as the last White House chief of staff during Trump’s tenure.
He’s citing a federal law that allows civil action or criminal prosecution to be removed to federal court if the lawsuit or prosecution relates to conduct performed “under color” of a US office or agency.
Willis accused Meadows of participating in a number of the 161 “overt acts” that make up the RICO charge, including traveling to a site in Cobb County, Georgia, where a ballot audit was taking place so he could “observe the signature match audit being performed there … despite the fact that the audit process was not open to the public.”
He’s also being accused of breaking state law when he took part in a January 2021 phone call that included Trump and Georgia Secretary of State Brad Raffensperger, in which Meadows and Trump urged Raffensperger to take part in the fake electors scheme.
“Nothing Mr. Meadows is alleged in the indictment to have done is criminal per se: arranging Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President. One would expect a Chief of Staff to the President of the United States to do these sorts of things,” Meadows’ filing states.
District Judge Steve Jones, an appointee of Barack Obama, has scheduled a hearing for August 28 on the issue.
Others could follow suit
Though Meadows was the first defendant in the Fulton County case to mount a removal bid, he likely won’t be the last.
In addition to Trump, the former president’s ex-lawyer Rudy Giuliani – who also faces 13 charges in the case – argued during his radio show on Tuesday that the same law Meadows cited in his filing “almost an automatic removal” to federal court.
“As a person acting as (Trump’s) agent – that’s what a lawyer is, his agent – I have a right to remove it to federal court,” Giuliani said, arguing some of the other defendants could also make similar removal claims.
For Trump, a potential removal bid won’t be a new exercise. The former president attempted the same thing in the hush money criminal case brought against him in New York, but a federal judge rejected that effort last month. Trump has pleaded not guilty in that case.
Legal experts told CNN that Trump’s arguments for removal in the Georgia matter would likely be stronger than the ones he put forth in New York, but that his case for removal likely won’t be ironclad.
“Every one of the alleged crimes he did as a candidate, not as president, in my opinion,” said Clark Cunningham, a law professor at Georgia State University. “But he does have an argument. And it’s going to have to be heard out in the federal courts.”
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CNN’s Tierney Sneed contributed to this report.
