By Petr Svab
Former President Donald Trump may be able to extricate himself from charges in Georgia related to his efforts to reverse the results of the 2020 election. Like his former chief-of-staff Mark Meadows, the 45th president can ask a federal court to “remove” the case from the state court on the grounds that it targets his actions as a federal official, explained Leslie McAdoo Gordon, a career defense attorney.
Federal officials can’t be targeted under state laws for actions they took in their official capacity. This is part of the federalist system in which certain issues are reserved for states and others for the federal government to handle, Ms. Gordon explained in a series of posts on X and a subsequent interview with The Epoch Times.
“It’s part of the liberty design of our federal republic,” she wrote.
Ms. Gordon examined how such removals were handled in previous criminal cases and found only a handful over the past several decades. In every instance, when the removal was granted the case got dismissed.
The issue is that federal officials enjoy immunity from prosecution in general as long as they acted on their official duties.
If a judge decides that a case should be moved into a federal forum because a defendant acted “under color” of his federal office, “that rolls right into” the argument that the federal immunity should apply as well, she explained.
Mr. Meadows has already filed his motion and Ms. Gordon expects other defendants who held federal office to do the same. That would include President Trump as well as former Department of Justice (DOJ) lawyer Jeffrey Clark.
Under the federal law, a motion to remove needs to be filed before the trial begins, but no later than 30 days after the arraignment. A federal judge will then review the motion and if it has any merit at all, the motion is accepted and a hearing is scheduled.
Mr. Meadows has managed to clear the first hurdle—District Judge Steve Jones decided on Aug. 16 not to toss the removal motion out of hand. He gave the Georgia prosecutors until Aug. 23 to respond and scheduled a hearing for Aug. 28 (pdf).
The next step is for the judge to decide if the alleged conduct fell within the bounds of the defendant’s official duties.
That should be done “promptly,” but in the past took up to several months, Ms. Gordon said. In the meantime, the state case continues, except that a judgement can’t be entered for the defendant.
If the judge grants the motion to remove, the state case is halted, but only for the defendant that asked for the removal, she pointed out.
In each of the of cases she was able to find, the defendant would file a motion to dismiss the charges and the federal judge would grant it on the grounds that the official was covered by federal immunity.
If the motion is denied, the case is sent back to the state court.
Both the state prosecutors and the defendant can appeal the ruling on the motion.
It’s theoretically possible that a judge may find that a case should be moved to a federal court, but doesn’t dismiss it.
“That has never happened, to my knowledge,” Ms. Gordon said.
In that case, state prosecutors would likely have to try the case using state law as it applies to the substance of the charges, but federal law as it pertains to the court procedure.
The Georgia prosecutors, from the office of Fulton County District Attorney Fani Willis, should have been aware of the removal issue.
“We all learned this principle in first year of law school,” Ms. Gordon said.
Ms. Willis brought the case on Aug. 14, alleging that President Trump and his alleged co-conspirators committed a racketeering conspiracy by claiming fraud in the 2020 election and trying to arrange an alternative slate of electors in Georgia and several other states in order to delay the counting of electoral votes by the vice president on Jan. 6, 2021.
Mr. Meadows, President Trump, and Mr. Clark may argue that they acted in their official capacities to try to ensure the integrity of the 2020 election, Ms. Gordon suggested.
It may seem a stretch to argue that the effort to arrange alternative electors fits within the duties of the president, but Ms. Gordon noted that the Supreme Court has previously construed federal immunity rather expansively, especially as it applies to the president.
In the Nixon v. Fitzgerald case of 1982, the Supreme Court ruled that a former president is covered by “absolute immunity” for official actions taken during his term and that the immunity extends to the “outer perimeter” of his duties. The court didn’t specify how broad that perimeter is, but the case suggests it’s extremely broad, Ms. Gordon said.
“To find that his behavior is outside of that immunity, you would have to say the behavior is something that does not overlap in any way with his duties or responsibilities.”
Such broad immunity may seem offensive to the rule of law, but there’s reasoning for it rooted in the Constitution, she said.
Presidential powers would be “chipped away” if people could sue him personally for his decisions as president.
The 1982 ruling only pertained to civil lawsuits, but Ms. Gordon said the court is likely to apply similar framework to criminal charges.
The Supreme Court may even “double down” and say “that it’s even more important that the president not be indicted by random state prosecutors because they’re unhappy with stuff that the president did.”
President Trump tried to raise the federal immunity defense in a civil suit he’s facing in Washington, in relation to his actions in the leadup to and during the Jan. 6, 2021, protest and riot at the U.S. Capitol. He was denied and his appeal of the issue, which is still pending, may eventually be resolved by the Supreme Court, Ms. Gordon said.
The Georgia indictment lists 19 defendants and alleges 41 crimes, including racketeering, false statements, forgery, and illegal tampering with election machines. Eleven of those crimes were ascribed to President Trump.
Republicans more broadly have joined President Trump in denouncing the charges as politically motivated and meant to interfere with hiss 2024 White House bid, in which he holds a comfortable lead for the GOP nomination.
Much of the same actions targeted by Ms. Willis have already formed the basis for a federal indictment brought earlier this month by special counsel Jack Smith.
Like Ms. Willis, Mr. Smith is building his case on a core premise that President Trump “willfully” and “knowingly” made false claims about the 2020 election. That places the burden on the prosecutors to prove that President Trump didn’t believe his own claims and in fact made them with a criminal intent.
Mr. Smith proposed a trial in the case to start with jury selection on Dec. 11, giving the defense some three months to go over more than 11 million pages and files of discovery materials.
President Trump is already facing a March 2024 trial date for state charges brought against him in New York for allegedly false bookkeeping entries and another trial set for May in another federal case litigated in Florida by Mr. Smith that involves the former president’s retention of national defense documents from his time in office.