U.S. District Court Judge Steve Jones on Tuesday ordered Fulton County District Attorney Fani Willis and former president Donald Trump's chief of staff Mark Meadows to offer opinions on a key matter essential to addressing Meadows's argument that his Georgia prosecution should be tried in federal court.
Jones asked both parties to provide their views on whether "a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadow's office [would] be sufficient for federal removal of a criminal prosecution under [the federal removal statute]."
When Meadows took the stand on Tuesday, he argued he was acting in his capacity as Trump's top White House aide when he reached out to Georgia officials following the 2020 elections. Fulton County prosecutors, on the other hand, asserted that Meadows' actions went well beyond the responsibilities of his federal position.
Meadows was charged in Willis' sprawling racketeering indictment, which accuses him and 17 others of conspiring to subvert the results of the 2020 election in Georgia.
In court documents, his legal team has already revealed their plans to seek the dismissal of the charges from a federal judge if the case is transferred to federal court, according to The Atlanta Journal-Constitution.
Even if a judge doesn't dismiss the charges, the shift to federal court would provide Meadows with a broader and potentially more conservative pool of jurors and bar cameras from entering the courtroom.
The pivotal point of contention for the removal hinges mainly on whether Meadows can prove that he was indicted for actions he carried out in his capacity as a federal official.
"The judge has clearly concluded that some of Meadows' indicted conduct was not within the scope of his office (chief of staff)," Lee Kovarsky, a University of Texas law professor and expert in the removal statute, told Salon. "He wants to know whether there is removal when some – but not all – of the indicted conduct is within [the] official scope."
To get his case "removed" to federal court, Meadows needs to establish three things, which include proving that he was a federal officer at the time of the alleged offense, who was performing his "official duties" and took actions within "the color of his office."
To fulfill the third requirement, Meadows has put forth a federal defense known as Supremacy Clause immunity. This provides protection to federal officers, safeguarding them from state prosecutions that emerge due to actions they believed, subjectively and reasonably, to be "necessary and proper to their official duties," Kovarsky explained in Lawfare.
"Willis has arguments on both prongs (2) and (3)," Kovarsky said. "She'll argue that you don't meet prong (2) unless all of the indicted conduct relates to official duties. And she'll argue on prong (3), where Meadows' has asserted 'Supremacy Clause immunity,' that the defense is not colorable unless it could defeat the RICO count entirely and it cannot defeat the RICO count entirely if some of the indicted conduct is not within the scope of the office."
He added that if Meadows' case is removed then Trump will most likely argue that "his case rides along with Meadows and that he gets removal" as well.
Clark Cunningham, professor of law at Georgia State University, also weighed in on X, formerly Twitter, arguing that this order "could be very bad news" for Willis.
"If I were the DA, I would ask grand jury for a superseding indictment that removes the name of Mark Meadows from Acts 5, 6, 7, and 19 of Count 1 (but continuing the allegations as to Donald Trump)," he wrote.
The first three alleged overt acts by Meadows (Acts 5, 6 and 7) are not necessary to establish his liability under RICO, but keeping them in the indictment now runs an "enormous risk" for the DA of losing the removal issue, in light of Judge Jones' order, since these overt acts come closest to meeting the test for federal officer removal, he added.
Cunningham explained that Acts 5 and 7 involve White House meetings between Trump and state legislators, for which Meadows made "plausible claims" on the witness stand that his role was limited to what the Chief of Staff typically does. Act 6 alleges only that Meadows asked a member of Congress from Pennsylvania for the phone numbers of the leaders of the state legislature in Pennsylvania, again saying this was a typical task for a chief of staff.
"Act 19 alleges that Trump & Meadows met together with another White House staffer, John McEntee and asked him to prepare a memo for a strategy to disrupt the January 6 session of Congress," Cunningham wrote. "Meadows testified firmly that Act 19 did not describe anything he had done and it is not worth continuing to try and prosecute Meadows for Act 19."
Jones ordered that Willis and attorneys for Meadows file their briefs by 5 p.m. on Thursday.
"This is a genuinely uncertain area of law," Kovarsky said. "Removal is going to be a close call, although I don't think the immunity defense itself will succeed when ultimately asserted."
