Former President Donald Trump now stands indicted in Fulton County Superior Court, but that does not necessarily mean he will be tried there.
Many legal experts predict Trump’s lawyers will try to move the case to the U.S. District Court just a few blocks away. To do so, they would use a little-known statute that allows U.S. officials charged with crimes to transfer a state criminal case to federal court where it would be presided over by a U.S. District judge. If the case does get moved and Trump were to be found guilty, he would be convicted of state, not federal crimes.
On Tuesday, his former chief of staff Mark Meadows became the first defendant in the sweeping racketeering indictment to try and move his case to federal court in Atlanta. In a 14-page filing in the U.S. District Court in Atlanta, Meadows’ attorneys argued their client had the right to change venues because the alleged criminal conduct “all occurred during his tenure and as part of his service as chief of staff.”
Relocating the case from Fulton could benefit the former commander-in-chief, who’s seeking the GOP presidential nomination for the third time, as well as Meadows, because it would most likely bring them a more conservative jury pool.
Whether such a request can succeed remains to be seen. But former DeKalb County District Attorney J. Tom Morgan thinks Trump’s Atlanta attorneys will give it a try..
“That issue could go all the way to the Supreme Court,” said Morgan, now a professor at Western Carolina University. “And as we all know, Mr. Trump likes to litigate anything and everything, whether he has a case or not.”
The primary impetus to move the case is to have an expanded jury pool, not one limited to residents of Fulton County, where President Joe Biden won more than 72 percent of the vote in 2020.
If Trump prevails in his motion to transfer the case, his jury pool would be made up of residents from the Northern District of Georgia’s Atlanta division, which is composed of Cherokee, Clayton, Cobb, DeKalb, Douglas, Fulton, Gwinnett, Henry, Newton and Rockdale counties.
While Biden won overwhelmingly in Clayton, DeKalb, Fulton and Rockdale counties, Trump got at least 36 percent of the vote in Cobb, Douglas, Gwinnett, Henry and Newton counties. He also thumped Biden in Cherokee with 69 percent of the vote.
“They would want a jury picked from a wider area than just Fulton County alone,” Atlanta defense attorney Jack Martin said of Trump’s attorneys. “Fulton County is overwhelmingly Democratic, although there are pockets of Republican voters. But getting the wider area would give them fewer Democratic-leaning counties — and jurors —to worry about.”
It’s also possible, because of the immense publicity surrounding the case, that jurors could be summoned from the entire Northern District, not just the 10 counties in the Atlanta division.
The Northern District is composed of 46 counties spanning the northwestern part of Georgia, from the Tennessee and North Carolina borders down to Troup County on the western side of the state and to Stephens County on the eastern side. It includes conservative strongholds that elected Republican U.S. Reps. Marjorie Taylor Greene, Barry Loudermilk and Andrew Clyde.
Culling jurors from an entire district was done in 2021 during the federal hate crimes trial of the three men convicted of the murder of Ahmaud Arbery. Because of sensational pretrial publicity, jurors were not summoned from just the seven-county Brunswick division, but from all 43 counties that make up the Southern District of Georgia.
A ‘colorable’ defense
The so-called removal statute was enacted by Congress in 1789 to protect federal officials from being harassed and prosecuted by state officials.
There are three conditions that must be met for defendants to move their cases to federal court: At the time of the alleged offense, they must have been a federal official; they must be facing charges “for or relating to any act under color of such office;” and they must raise “a colorable federal defense.”
Trump may be able to meet those conditions, said Atlanta defense attorney Andrew Fleischman.
“The former president is going to claim that he was trying to enforce some sort of federal law” as he pressured Georgia officials to overturn his election loss, Fleischman said. “And then the only question is: Is it colorable?”
Fleischman said a colorable argument “means plausible, just barely plausible, something that you can say with a straight face. And he could. Could he say with a straight face he was trying to ensure election integrity? Yes, he could make that claim.”
It’s also possible that lawyers for Jeffrey Clark, who was an assistant U.S. attorney general could try to remove his case to federal court. And there is court precedent that could allow someone who was acting as an agent of a federal official to make such a request.
Trump’s lawyers have already tried but failed to remove the hush money case brought against the former president in state court in Manhattan to the U.S. District Court in New York.
In that case, Trump faces felony charges involving payments he made to porn star Stormy Daniels. Trump is accused of falsifying business records in 2017 to hide $130,000 in reimbursements paid to his then-attorney, Michael Cohen. Trump has denied any wrongdoing and denied having an affair with Daniels.
In July, U.S. District Judge Alvin Hellerstein in New York said Trump’s lawyers failed to show that the conduct charged in the indictment related to any act performed by Trump 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,” he ruled. “Hush money paid to an adult film star is not related to a president’s official acts.”
Meadows’ motion was assigned on Tuesday to U.S. District Judge Steve Jones in Atlanta. The Fulton racketeering case has been assigned to Superior Court Judge Scott McAfee, a former prosecutor and state inspector general who was appointed to the bench by Gov. Brian Kemp and sworn into office in February.
If Trump’s attorneys in Atlanta were to prevail, it would not be the first time a Fulton case was removed to federal court.
In October, U.S. District Judge Victoria Calvert approved a request from defense attorneys to remove to federal court the felony murder case of two members of a multi-agency fugitive task force. Calvert ruled that Eric Heinze and Kristopher Hutchens were acting within the scope of their federal duties when they fatally shot Jamarion Robinson in 2016 at an East Point apartment.
Fulton prosecutors had argued to keep the case in Superior Court, but Calvert found that Heinze and Hutchens met the three conditions to transfer their case. Calvert is now presiding over the case and Fulton County prosecutors will try it.
Atlanta defense attorney Don Samuel, who represents Hutchens, agrees there is a low threshold to be cleared to remove a case to federal court. “Colorable means it isn’t black and white, but close enough. Or, alternately, when you announce your defense, people don’t start laughing,” he said.
Samuel said it may be a close call as to whether Trump can succeed making such an argument.
“The key is that the federal official must, in fact, be engaged in his federal occupation,” Samuel said. “If an FBI agent shoots his wife, or shoplifts at Walmart, the agent cannot remove a state prosecution. So when Trump called (Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021), was he engaged in his federal occupation? Or was he engaged in a purely personal lark of his own?”
Claire Finkelstein, a University of Pennsylvania law school professor, does not believe Trump can prevail in arguing he was acting under the color of his office.
“Trying to win an election is the quintessential personal capacity act,” she said. “The president in that case is a candidate. He’s not acting in his capacity as president of the United States. ... He was acting purely in his personal capacity.”
One thing most legal experts agree upon is that if an attempt is made to remove the case to federal court, the losing party will appeal the judge’s decision to the 11th U.S. Circuit Court of Appeals in Atlanta. And that court’s decision could then be appealed to the U.S. Supreme Court.