Federal appeals court judges on Friday appeared skeptical of an argument from Mark Meadows’s lawyer that the former White House chief of staff should be allowed to transfer his election interference case from state to federal court.
Meadows, charged with two felonies by a Fulton County grand jury, contends his case should be moved from Fulton Superior Court because he was a federal official at the time at the time of his alleged criminal conduct. His lawyer, George Terwilliger, told a three-judge panel of the 11th U.S. Circuit Court of Appeals that a federal court is better suited than a state court to protect Meadows’ rights as a former White House official.
The state’s position, Terwilliger claimed, is “unprecedented, unorthodox and unworkable.”
But during Terwilliger’s argument, Chief Judge Bill Pryor and fellow judges Robin Rosenbaum and Nancy Abudu each said they had a “problem” with certain aspects of Meadows’ appeal.
The judges did not indicate how or when they will decide the issue. The case, being considered on an expedited basis, will likely wind up before the U.S. Supreme Court. There is little case law on the subject, particularly in relation to former federal officials.
Fulton County District Attorney Fani Willis, who secured the indictment against Meadows, former President Donald Trump and 17 others on racketeering and other felonies, wants to keep proceedings in Fulton Superior Court.
If he’s successful in moving the case, Meadows would receive a broader — and slightly more conservative — jury pool. He’s also hoping that federal judges would be more receptive to arguments of immunity. Cameras also aren’t permitted in federal court, whereas Fulton proceedings will be live-streamed on YouTube.
During the arguments, Pryor pointed to one section of the removal statute that says nothing about “former” federal officials being able to transfer criminal cases out of state courts. That section applies only to current federal officials, he said.
And Pryor said there may have been a reason why Congress did not include former federal officials in the removal statute.
“It might well be that Congress could rationally assume that there’s a heightened reason for removal, where you’re dealing with a current officer, because it involves ongoing operations of the federal government,” Pryor said. " ... That heightened concern might not exist where you have a a former officer because it doesn’t involve the ongoing operations of the government.”
The chief judge added that former federal officials like Meadows should not be so concerned about having their cases tried in a state court. “We ordinarily have a presumption that the separate sovereign of a state and its courts are equally faithful to the Constitution and the law and can be trusted,” Pryor said.
Terwilliger responded, “If the statute were to be interpreted that former officials were not covered, as soon as judges leave the bench, officials leave an administration, a member leaves Congress, their ... federal defenses would be presented in state court, which would lead to chaos.”
On separate occasions, Pryor, Rosenbaum and Abudu wondered what the effect would be if former officials are found to not be covered by the removal statute.
Isn’t it possible that an official from an administration that might be unpopular in a certain jurisdiction could “be immediately subject to prosecution in those jurisdictions after they leave office?” Pryor asked Fulton County prosecutor Donald Wakeford. “Wouldn’t that put us really in an untenable situation?”
Similarly, Rosenbaum pitched a hypothetical in which the president and his entire cabinet are indicted the day they leave office in jurisdictions where their policies were unpopular.
“And they’re indicted for activities that clearly were within the scope of their official duties,” she said. “I mean, doesn’t that create a chilling effect in some way on people who might consider running for office or people who are in office? And maybe they think twice about what they’re going to do because they are concerned about being indicted later and not being able to have a trial in a federal forum?”
Wakeford said he understood the judges’ concerns that such a reading of the text could possibly lead to abuses of prosecutorial power. But if there is a need to amend the law, that is something for Congress to do, not the courts, he said.
Terwilliger said that when he served as deputy and acting U.S. Attorney General under President George H.W. Bush, “my decision-making would have been really different if I knew the moment I stepped down, I could be charged in a state court.”
But Pryor, raising his eyebrows in surprise, asked, “So you’re saying that your conduct would have been different if you had known that if you were charged in a state court you couldn’t have removed it to federal court?”
Yes, Terwilliger replied, “because it has a chilling effect.”
