Former White House chief of staff Mark Meadows may have "fatally sabotaged" his effort to remove his Fulton County case from Georgia court to federal court, legal experts say.
Meadows is set to face U.S. District Judge Steve Jones on Monday in an evidentiary hearing on his bid to move the case to federal court but faces a "seemingly insurmountable barrier," legal analysts Walt Shaub, Norm Eisen and Joshua Kolb wrote in a piece published at Just Security.
To remove the case to federal court, Meadows would have to show that he was charged under conduct related to his official duties as a federal official. "Even though the legal hurdle is low and the law is favorable to federal officers," the analysts wrote, Meadows' lawyers have "remarkably conceded" that all the "substantive allegations in the Indictment concern unquestionably political activity," which may prove "fatal" to Meadows' removal bid.
"A proper and straightforward understanding of the Hatch Act – which prohibits executive branch employees from interfering in elections–indicates that Meadows will not be able to meet his burden of showing the alleged conduct was connected to his official duties," they explained, pointing to a federal law barring activity that could influence an election by federal personnel.
Because Meadows was subject to the Hatch Act, he had "no authority" to engage in the charged conduct, they argued.
The experts cited a provision of the Hatch Act that bars a federal officer from using "his official authority or influence for the purpose of interfering with or affecting the result of an election."
"To stitch together the severed thread between his conduct and his former role, Meadows tries in vain to pretend that the Hatch Act does not exist — or that it is inapplicable, unconstitutional, or amenable to violation by presidential aides. But that thread cannot be mended," they wrote.
Fulton County District Attorney Fani Willis similarly argued in a court filing that Meadows' defense is undercut by the Hatch Act. Meadows in a reply filing argued that the "state is wrong" to assert that political activity was not part of his official duties.
"The very purpose of the Hatch Act was to place political acts of the kind charged here beyond the reach of the office of Chief of Staff to the President," the analysts noted, adding that as a matter of established law, the Fulton charges "allege acts that could have only been committed in a personal capacity."
Though Meadows' attorney argued that his "conduct was actually required or properly considered part of his official duties," prosecutors are not concerned with what was "properly considered" part of his job but with "what the law prohibited," the column continued, adding that the law "flatly prohibits" the chief of staff from committing the charged acts.
Meadows' attorney has also argued he has "a colorable defense arising out of [his] duty to enforce federal law" and that the Constitution's Supremacy Clause "provides immunity from 'suits under state law against federal officials carrying out their executive duties."
But the experts argued that the conduct did not "arise out of his duty to enforce federal law" but his "failure to comply" with it.
"Put simply, Meadows cannot meet his burden of demonstrating a connection between the conduct and his duties because his duty was specifically to avoid committing the conduct. He cannot show he was 'carrying out' his "executive duties" because his duty was to carry out a law prohibiting that conduct," they wrote.
Meadows cannot "plead ignorance" of the Hatch Act since he "revealed his contempt for the law" in an Office of Special Counsel investigation into repeated Hatch Act violations in the Trump administration, the experts continued.
"Nobody outside of the Beltway really cares," he told investigators.
"Moreover, Meadows' attempt to get the case dismissed by raising federal defenses may have fatally sabotaged his removal effort," the analysts added, because he "admits that all of the alleged activity was fundamentally political."
"Meadows, in essence, has admitted that he cannot clear the first prong of the removal test; he has undermined any potential for showing that the charged conduct was for, or related to, any act under the 'color of his office,'" the analysis concluded.
Palm Beach County State Attorney Dave Aronberg told Newsweek that he agrees that the Hatch Act "specifically barred Meadows' conduct and should prove fatal for his attempt to remove the case to federal court."
"His removal request made a crucial concession that all of the 'substantive allegations in the Indictment concern unquestionably political activity,'" he said. "That should be enough under the Hatch Act for Judge Jones to reject Meadows' Motion."
Jonathan Turley, a George Washington University law professor, told the outlet that the Hatch Act is a "legitimate objection" to a removal motion and that Meadows conceded that the allegations focus on "unquestionably political activity."
"However, the decision of Willis to include over 160 different acts, tweets, and statements in the indictment could come back to haunt the prosecution," he said. "Some of the acts do seem to fall into Meadows' role as chief of staff. There are good arguments on both sides. However, it could require an appellate process to fully sort out. It will require not only an interpretation of the scope and applicability of the Hatch Act as well as the scope of the duties of the chief of staff."
Former U.S. Attorney Harry Litman agreed that a denial of Meadows' motion is appealable to appellate courts and possibly the Supreme Court, which could potentially help former President Donald Trump "delay" the proceedings.
