Multiple defendants charged with seeking to overturn the 2020 presidential election in Georgia are trying to move their cases to federal court, a maneuver that could delay their arrests and that might also help them plead immunity in court.
So far, three of the 19 defendants have filed to move their case to federal court: Mark Meadows, former President Trump’s White House chief of staff; Jeffrey Clark, a former Justice Department official; and David Shafer, a fake elector and former Georgia Republican Party chairman.
“It’s sort of a two-step dance that they’re trying to make, as far as I can tell,” said Jared Carter, an assistant professor at Vermont Law and Graduate School. “Removal [as a] federal official, and then making some sort of immunity defense in federal court that they can’t be tried for these crimes.”
Trump, who plans to surrender Thursday, could soon follow in their footsteps, as he’s already tried a similar tactic in another state-level indictment he’s facing. The former president previously attempted to move his hush money criminal case in New York to federal court, but a judge rejected the bid. Trump is now appealing that decision.
There are several reasons why the defendants might want to move their cases.
Legal experts note a federal trial would be heard by a different judge and a jury pool less filled with Democrats than one in Georgia’s Fulton County. It would also not be televised.
The legal maneuver to move the case to federal court is also being used by Meadows and Clark to delay arresting them until a decision on moving the case is reached. They have until Friday to surrender to county jail.
The defendants seeking to move their cases are relying on a statute that Congress first established more than 200 years ago to prevent federal officials from being stymied in carrying out their duties. The mechanism was originally created to combat state court lawsuits filed against customs officers, who were enforcing a trade embargo against England during the War of 1812.
Under the current version and Supreme Court precedent, federal officials can move their state criminal prosecutions if the allegations relate to an act taken “under color of such office” and the official shows a “colorable federal defense.”
Meadows argues he is immune because the allegations against him — his trip to Georgia following the 2020 election and calls he organized between Trump and election officials — was part of his job in the White House.
“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’s attorney wrote in court filings.
It’s unclear if the argument by Meadows will hold water in court.
Jeffrey Cohen, associate professor of the practice at Boston College Law School, said a White House chief of staff speaking to election and state officials could be part of their duties.
“However, what he was doing here was working on basically Trump’s campaign, not necessarily as his official duties,” Cohen cautioned.
Meadows’s filing was followed days later by ones from the two other co-defendants, who also argued their cases should be moved so they can assert immunity. Clark’s attorneys wrote the allegations “relate directly to his work” at the Justice Department, and Shafer’s attorneys wrote his alleged conduct “stems directly from his service as a Presidential Elector nominee.”
One key difference has emerged, however: Meadows wants to stand alone.
Meadows’s attorneys have opposed any attempt to delay his Aug. 28 hearing so the other co-defendants’ requests can be heard simultaneously.
“I suspect he wants to be away from other people in this conspiracy, and the more he can be isolated, the more likely the full story is not going to be told in his case,” Cohen said.
Clark, on the other hand, asserts his 18 co-defendants, too, must be tried in federal court if Clark’s charges are moved.
“Mr. Clark understands Mr. Meadows’ desire for expedition given the various ways that the indictment of Mr. Meadows, Mr. Clark, and former President Trump are illegal,” Clark’s attorneys wrote in court filings.
“However, Mr. Clark, noting that this entire case has been removed, recognizes the large-scale management problems this case will create for this Court … And we believe that Mr. Clark (and all other defendants) should be allowed to file a motion to dismiss based on a non-rushed schedule that this Court establishes as it begins to get its arms around all that is involved in this case.”
Clark and Meadows have also lodged separate emergency requests to block Fulton County from arresting them until a decision on moving to federal court is reached. Willis has given them until Friday to surrender.
“Use of a state law criminal process designed to generate headlines, potential ‘perp walks’ for television cameras, and anything more than simple service of process on defendants would be inappropriate here given the removal,” Clark’s attorneys wrote.
The defendants could have reasons beyond what’s stated in their court papers for wanting to move the cases.
In Georgia, the jury pool would be selected from Fulton County, home to its capital city of Atlanta, which President Biden carried by 47 percentage points in 2020.
But head out toward the suburbs, and a trial in federal court would lessen that advantage. Biden won the area covered by the U.S. District Court for the Northern District of Georgia by only 7 percentage points and the court’s Atlanta division by 32 points in 2020, according to a review of state election data.
Legal experts also stressed the impact of a Senate-confirmed federal judge replacing the Georgia state judge.
“I think it’s mostly the judge,” Cohen said. “I think that Meadows assumes he’ll get a more favorable judge in federal court, a judge who wouldn’t be swayed by necessarily political views here. But I think I don’t see a large advantage for him to be in federal court.”
Defendants who successfully move their charges to federal court would also diminish the chances of their trial being televised. Fulton County Superior Court trials are often streamed, but federal courts generally don’t allow video or audio recordings.
“If this was Donald Trump we’re talking about, my guess is he wants a TV live-streaming this and Truth Social it out,” Carter said. “But when it comes to Meadows and others, I think perhaps they want a lower profile.”
But if any of the defendants are looking for a presidential pardon by moving the Georgia case to federal court, experts say that will be an unlikely advantage because they would still be charged and tried on state charges, which are not eligible.
“What a federal court is going to have to do is it’s going to have to enforce substantive state law,” Carter said. “And so they’d still remain the same state charges, they’d still be presumably in state custody if they were to be convicted, and it would mean that the president couldn’t pardon, because the president’s pardon power only applies to the federal system.”