Trump-era government lawyer Jeffrey Clark and three so-called fake electors just lost their appeals court bids to move their state election interference charges in Georgia to federal court. But their co-defendant Mark Meadows has a pending Supreme Court petition on the subject that could affect their cases, too.
Meadows wants the justices to reverse last year’s ruling by the 11th U.S. Circuit Court of Appeals that said former federal officers such as himself can’t move their state cases to federal court, where these defendants apparently think they’d be better off.
On Thursday, the 11th Circuit cited the Meadows precedent in ruling against Clark and, separately, against “contingent” 2020 GOP electors David Shafer, Shawn Still and Cathleen Latham.
“Clark does not argue that he is a current federal officer. So under Meadows, which we are bound to follow, he is ineligible to seek removal,” the ruling against Clark said. (Noting that Clark wasn’t charged for alleged acts taken within his government responsibilities, a concurring judge added that “even if the federal-officer removal statute applied to former federal officers, he would still not be entitled to removal of the Georgia action under the federal-officer removal statute.”)
Likewise in ruling against the fake electors, the appeals court wrote that “Shafer, Still, and Latham are not entitled to removal because, even if nominated electors could be federal officers under the removal statute, the statute does not apply to former officers.”
Notably, however, a different concurring judge, Trump appointee Britt Grant, argued Thursday that the circuit’s Meadows decision “was, and is, incorrect.” While the concurrence could add weight to Meadows’ pending Supreme Court appeal, it’s worth pointing out that the Meadows precedent was authored by conservative stalwart William Pryor, who was also part of Thursday’s decisions against the Donald Trump co-defendants. So it’s not a straight-up Republican vs. Democratic judicial issue, but there’s obviously disagreement about it. The Supreme Court will consider whether to take up Meadows’ petition in its private conference on Nov. 8; it takes four justices to agree to review an appeal. There was already reason to think the justices might be interested in taking it even before Thursday. But the latest action could further highlight that the issue needs sorting out by the justices. That’s so even though the high court taking the case could further derail the Georgia case, which is currently tied up on an unrelated pretrial appeal, with no trial date in sight as Trump runs for office again. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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