After news broke on Monday night of Donald Trump’s indictment in Fulton county, Georgia, attention quickly turned to the possible spectacle of a trial unfolding on television as a former president attempts to rebut charges of racketeering and conspiracy over his efforts to overturn the results of an election.
But before the district attorney Fani Willis can have the opportunity to make her case against Trump with the cameras rolling, she must first clear a key procedural hurdle to keep the case in Fulton county. Trump’s legal team is expected to rely on a little known legal statute to argue the case should be moved to federal court, and that jurisdictional question could delay a trial for months. The stakes of that procedural fight will be high, as a conviction in Fulton county would leave Trump facing years of prison time with no clear pathway to a pardon.
Fulton county is already bracing for a media frenzy when Trump’s case goes to trial, which could happen in March 2024 if Willis gets her way. A Georgia trial could provide Americans with their sole opportunity to see one of the criminal cases against Trump play out in real time, as state law generally requires cameras to be permitted inside courtrooms to cover judicial proceedings. That policy would be a stark contrast to rules for federal courtrooms – unless Trump succeeds at moving the case by invoking the federal officer removal statute.
The statute allows a federal official to have a state case moved to federal court if the matter of concern is “for or relating to any act under color of such office”. Trump’s legal team is expected to argue that, as he attempted to overturn Joe Biden’s 2020 victory in Georgia, he was acting in his official capacity as president, and thus the case is a federal issue. Some of Trump’s 18 codefendants in the Fulton case may attempt to make the same argument, as the statute also covers “any person acting under” a federal officer. Trump’s former White House chief of staff, Mark Meadows, filed a motion on Tuesday to have his case moved to federal court based on this legal doctrine.
A federal judge will be called upon to determine whether Trump’s case will remain in state court. If a judge rules in Trump’s favor, the case would move out of Fulton county, killing the possibility of a televised trial and significantly altering the legal stakes for the former president.
“This jurisdictional issue is the key to this case right now,” said Eric Segall, a professor at Georgia State University College of Law. “Talking about anything other than the federal removal statute is putting the cart before the horse.”
If Trump’s motion is successful, the case could continue in federal court, but Segall warned that such a ruling might ultimately result in a dismissal of the charges.
“He may get immunity in federal court … States aren’t allowed to arrest federal officers for performing federal duties,” Segall said. “The issue is not, did he do the acts? The issue is, is it part of his official conduct? And if it is, charges could get dropped.”
But there is warranted skepticism that Trump’s efforts to remove the case will prove successful. Trump’s lawyers attempted to make a similar argument in New York, where he is facing 34 felony charges of falsifying business records over his alleged role in a hush-money scheme to silence an adult film star who claimed to have had an extramarital affair with the former president. The federal judge Alvin Hellerstein rejected the argument, ruling that Trump’s alleged misdeeds did not qualify as acts under color of his office as president.
“The evidence overwhelmingly suggests that the matter was a purely a personal item of the President – a cover-up of an embarrassing event,” Hellerstein wrote in his ruling. “Hush money paid to an adult film star is not related to a President’s official acts. It does not reflect in any way the color of the President’s official duties.”
Of course, the New York and Georgia cases differ significantly in terms of their substance, which will affect Trump’s chances of success in Fulton county. Trump could theoretically make a stronger argument that questions of election administration fall under the umbrella of his presidential duties, a more far-fetched claim when it comes to his involvement in a hush-money scheme. But Willis will likely rebut that Trump’s efforts to overturn the outcome of a free and fair election, after he had already lost dozens of lawsuits challenging the results, do not qualify as official presidential duties.
Ronald Carlson, a professor at the University of Georgia School of Law, predicted a federal judge would soon issue a ruling keeping the Fulton county case in state court.
“Removal of cases from state court to federal court is something that is a more typical process in the civil arena. The rules of civil procedure do allow that with much more liberality than in the criminal arena,” Carlson said. “So in criminal cases, the presumption is that, if it’s a Georgia charge, it’ll be tried in a Georgia court.”
Even if the case does stay in state court, legal wrangling over state versus federal jurisdiction could theoretically stretch on for months, jeopardizing Willis’s preference for a quicker trial date.
“Whichever way the federal judge rules on the removal question, it will be appealed and then appealed again,” Segall said. “That could take a really long time. That’s why six months is not reasonable.”
Much will be riding on Trump’s ability to remove the case to federal court. The racketeering charge filed against Trump carries a sentence of five to 20 years in prison. If Trump were convicted in Georgia, he could not pardoned by a sympathetic president because the charges were filed at the state level. In Georgia, the governor does not even have the power to issue pardons, as that duty lies with the state’s board of pardons and paroles. According to Carlson, Trump could not even apply for a pardon until he has been convicted and served five years in a Georgia prison.
“The stakes for the Trump team are really high in Georgia, so I expect a full-fledged defense by President Trump,” Carlson said. “Probably a lot of that will verge on political bias.”
Trump has already offered a preview of that politically driven strategy. In a statement issued Monday night, Trump’s presidential campaign attacked Willis as a “radical Democrat” and “rabid partisan”. Despite those personal attacks, Willis appeared undaunted as she spoke to reporters on Monday night, shortly after the indictment was unsealed.
“All elections in our nation are administered by the states, which are given the responsibility of ensuring a fair process and an accurate counting of the votes,” Willis said. “The state’s role in this process is essential to the functioning of our democracy.”
Although Segall believes Trump may succeed at removing the case to federal court, he expressed hope that a group of Georgians will eventually have the opportunity to issue a verdict on the former president’s election subversion efforts.
“I’m talking as a citizen more than as a law professor, but I think Donald Trump is an existential threat to our country,” Segall said. “And I think a Georgia jury should decide if he broke the law in Georgia.”
