Former White House Chief of Staff Mark Meadows, in a legal maneuver that is expected to be imitated by former President Donald Trump, has asked a federal court to clear him of criminal charges in the new case in Georgia state court over the attempt to overturn the 2020 presidential election.
The tactic is based on the Constitution and on a federal law, both more than two centuries old. Together, the argument is, they protect federal officials from prosecution by states. Significantly, however, that protection exists only if the official was carrying out duties of their office.
The main legal basis of the massive list of charges filed in Georgia this week is that Meadows, along with Trump and his allies, were committing state crimes – and were not doing official tasks — when they tried to undo Trump’s defeat in 2020 and keep him in office. Meadows faces two criminal charges; Trump faces 13. Both of them are accused of being part of a “criminal racketeering enterprise” to undo Trump’s 2020 defeat.
It will be up to a federal judge in Atlanta to make the first ruling on whether the state’s theory of its charges will prevent federal protection of Meadows, Trump and others. It seems likely, though, that a final answer may only come in higher courts, including the Supreme Court.
Lawyers for Meadows moved swiftly on Tuesday, hours after the 98-page indictment was issued by a state grand jury in Atlanta, to transfer the case from the state trial court to a federal trial court just a few blocks away in downtown Atlanta. The Meadows lawyers had the authority to transfer the case there, under federal law, but that does not guarantee that it will remain there for trial.
Meadows’ filing asked U.S. District Judge Steve C. Jones to dismiss – without holding any hearing — the two criminal charges against Meadows. The document asked the judge at least to hold a prompt hearing on whether the case should stay in federal court for trial and, if so, whether to block any further prosecution in state court.
Trump’s own lawyers are apparently considering making the same attempt in federal court, but as of Wednesday evening had not done so. They almost certainly would rely on some of the same legal theories underlying the Meadows filing.
After quickly reviewing the Meadows filing, Judge Jones on Wednesday night issued an order finding – as a temporary measure – that the document was procedurally in order so he did not order the case’s immediate return to state court. The judge stressed that he would not decide whether the case could go ahead in federal court or what to do about Meadows’ plea for dismissal of the charges, until a hearing is held. That hearing was set for Monday, August 28.
Meadows must now send the judge’s order to Fulton County District Attorney Fani T. Willis, who will have a chance to oppose federal handling of the case, to keep it in state court; her response is due next Wednesday, August 23. In the meantime, the judge said, there will be no interruption of the state case.
This dispute, even before it goes to trial on the issue of guilt or innocence, involves the interaction of core America law, court precedents and long-running legal history. What is it all about?
At the heart of the Meadows maneuver is something that Congress and the American people did in 1789, and why that was done. In 1789, the Constitution was ratified – including its Article VI.
Now, Mark Meadows is trying to use Article VI in two ways: to justify moving the case against him to federal court, and to give him immunity to the state criminal charges. Besides Article VI, he is relying on the modern version of a law first passed by Congress in 1815.
Behind Article VI is what happened in America in the original states – the 13 formed after the colonies broke away from England. Each was entirely independent and fully self-governing; each was, in short, sovereign. But they did not do particularly well in that status; jealous of each other, they almost constantly bickered, and the national Congress they created under the Articles of Confederation did not have power to bring about order and national union.
So, “in order to form a more perfect Union,” Americans wrote a Constitution creating a strong national government. The sixth Article is fundamental to national union. It says simply that the Constitution and national laws enacted under it are “the supreme law of the land,” and state laws that conflict with that are not valid.
Using that power, Congress in 1815 enacted the nation’s first “federal officer removal statute.” It did so as the War of 1812 was nearing its end, and federal customs officers were enforcing an embargo on trade with England. Owners of ships in the northeast states were unhappy with the embargo, so they were suing the customs officers in state courts – more sympathetic to their objections. The federal Customs Act of 1815 provided that any customs officer or any anyone helping them enforce the embargo could have any state case transferred to federal court to assure that enforcement would be successful.
That law, and every later version of it, was tied to enforcement of official duties of the federal officers involved. The current version, which was passed in 1948, allows transfer of any state criminal case to federal court if it challenges acts taken by the officer “under color of such office.” The Supreme Court in rulings over the years has ruled that this somewhat arcane language is a reference to duties of the office. The phrase, it has said, is broad but not unlimited.
And it has ruled that one of the reasons for putting a case before a federal court is to allow the officer to make a claim of immunity to the state charges based upon the national status of the office.
Relying upon that background, Mark Meadows now seeks to avoid prosecution of him in Georgia state court. The indictment accuses him of two crimes under state law, based upon nine separate actions that it says he took. The broadest charge is that he joined in the conspiracy to use a “criminal enterprise” aimed at overturning Georgia’s victory for President Biden in 2020; to aid that conspiracy, the indictment lists eight acts. The second charge, supported by one act, is that he urged state officials to violate their oaths to enforce election laws.
For example: one of the acts that Meadows was said to have taken to support the conspiracy was “Act 19,” asking another person to “prepare a memorandum outlining a strategy for disrupting and delaying the joint session of Congress on January 6, 2021” – that is, the session for counting the votes (including Georgia’s) on who won the Presidency.
None of the nine acts is itself treated as a crime, but each act is said to have been taken “in furtherance” of the broad “criminal” conspiracy. (Under conspiracy theory, a jury must agree that there was at least one underlying act toward carrying out the conspiracy, in order to convict. The jury does not have to find that the conspiracy succeeded.)
Meadows does not dispute any of those nine acts, but argues that each of them was part of his normal duties as White House chief of staff. That means, his lawyers argue, that he was entitled to move the case from state court to federal court.
Their argument that the charges against him should be dismissed by the federal judge is based upon the claim that he is immune to these charges because of the effect of the Constitution’s Article VI, known usually as the “Supremacy Clause.”
Quoting from a Supreme Court decision in 1819, the Meadows filing declares: “ ‘ The states have no power to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the federal government.’ “
If that argument were to win in federal court, it would be a significant loss for Georgia and other states seeking to prosecute Trump, Meadows and others for their actions to change the outcome of the 2020 election. Nothing is more fundamentally important to state government than the power to protect their own residents by enforcing the state’s criminal laws.
Meadows’ filing concedes the importance of such power, but contends that the power “may not be employed against the Federal Government.”
His lawyers rely heavily upon a Supreme Court ruling in 1890 (In re Neagle), ordering the release from jail of David Neagle, a deputy U.S. marshal. He faced a murder charge in California state court for having shot and killed David S. Terry, who had threatened to kill Supreme Court Justice Stephen Field during Field’s visit to California to perform judicial duties. Neagle was assigned to protect Justice Field – an official duty.
It is now the task of U.S. District Judge Jones to decide if Meadows validly moved the case to federal court, and if Meadows will be declared immune to the state charges. Meadows must win on both issues to avoid prosecution.
If the case is properly in federal court, but Judge Jones rules against the immunity claim, the charges against Meadows would go forward in federal court, based primarily upon Georgia law governing trial of such charges. Federal law requires Jones to rule promptly on those questions.
