Mark Meadows wants his criminal case moved to federal court, under an Obama-appointed judge.
A federal judge may be more sympathetic to arguments that he's immune from the case, experts say.
Trump is likely to try the same move — but will have an uphill climb.
This week Mark Meadows — ex-President Donald Trump's former chief-of-staff — testified for four hours in federal court, pleading for a judge appointed by former President Barack Obama to take over his criminal case.
Trump himself is expected to make a similar move.
Fulton County District Attorney Fani Willis originally brought criminal charges against Meadows, Trump, former Justice Department official Jeffrey Clark, and more than a dozen other political allies in Georgia state court earlier this month. In a sprawling RICO indictment, she accuses the group of participating in a racketeering enterprise that illegally pressured public officials to toss out now-President Joe Biden's Georgia victory during the 2020 election and keep Trump in power instead.
Meadows, Clark, and several other defendants have asked to have their cases removed to federal court. If Meadows is successful, it could pave the way for Trump to maneuver his way into federal court — where he may get a more favorable jury and could get less scrutiny from the cameras as he runs in the 2024 presidential race.
"This is a powerfully significant procedure because the move to federal court for at least three of the defendants will throw a big harpoon into the sea of charges brought by the state," Ronald Carlson, a professor at the University of Georgia School of Law, told Insider. "If lightning strikes and Meadows wins, it'll assist his case in a compelling way."
Why is Meadows — and potentially Trump — so desperate to have a trial in federal court?
His lawyers may believe that a federal judge might be more willing than a state judge to consider legal arguments that would make him immune from the criminal charges, according to Mai Ratakonda, a senior counsel at States United Democracy Center.
"A federal court judge might be more sympathetic to some of their federal constitutional defenses that they might want to raise," Ratakonda told Insider. "So if they are planning to raise defenses involving, for example, executive immunity, they might be thinking that a federal judge might be more amenable to hearing them out on those."
Meadows is the first defendant to have a hearing over whether his case should be removed to federal court. If the case is moved, a federal judge would oversee the criminal case in federal court instead of state court, but the charges would stay the same and the district attorney's office would still prosecute the case. Both Trump and Meadows have denied wrongdoing.
US District Judge Steve C. Jones, the Obama-appointed judge who was randomly assigned to the case, scheduled a removal hearing for Clark on September 18. He set another hearing on September 20 for David Shafer and Cathleen Latham, two fake electors also under indictment.
At the Monday hearing, Meadows said all of his actions were within the scope of his role as Trump's chief of staff. In court filings, his lawyers have argued that he's shielded by the Supremacy Clause of the US Constitution, which protects federal employees against interference from state officials. Meadows's conduct, they argued, was within "his official duties and the federal policy underlying them."
"In order for the court to accept this case as a federal case, the defendants have to show that they were acting within their capacity as federal officers when they took the actions that underlie the indictment," Ratakonda said.
Trump may raise some of the same legal arguments
There are other benefits to removal. While Georgia's state courts are famed for their public access, often allowing live video cameras into courtrooms, federal courts are not. Any trial is sure to be covered closely by the media, but having it in a federal courtroom might minimize unsavory public images as Trump continues to run for the 2024 Republican presidential nomination.
A state court proceeding would also take in jurors from Fulton County, which voted overwhelmingly for Biden in 2020. A federal court trial would have a much wider jury pool, including from counties that voted for Trump in the election.
Even if Meadows successfully shows he was acting within his duties as a federal official and gets his case removed to federal court, it doesn't mean Jones will automatically accept his arguments that he was just doing his job. The legal standards for removal and executive immunity overlap, but differ in important ways.
The indictment notes that Meadows spoke to Georgia officials and traveled to the state in order to observe the electoral process. But states — not the federal government — historically oversee the voting process, Norm Eisen, a political ethics lawyer, told Insider. Prosecutors argue he took those actions on behalf of Trump's political goals, not as part of his chief-of-staff job.
Trump and his legal team are likely paying close attention to Meadows's removal fight. Jones hasn't yet made a decision, and on Tuesday asked Meadows and prosecutors to file more legal briefings on the issue.
Prosecutors brought two charges against Meadows, accusing him of racketeering and soliciting Georgia Secretary of State Brad Raffensperger to break his oath and alter election results.
Trump faces 13 criminal counts. Prosecutors brought the same charges against him, plus additional ones for pressuring even more state officials to overturn election results, and for pushing a plot to appoint fake electors that would deny Biden his rightful victory.
"You would have to embrace the idea that an attempted coup is part of the official duties of a president or a chief of staff when they're clearly doing it as a failed campaign candidate, and in a political activity," Eisen said at a panel organized by the States United Democracy Center. "No court is going to swallow that."
Azmi Haroun contributed reporting.
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