Mark Meadows’ quest to move his Georgia state prosecution to federal court has been messy enough already. But to add yet another wrinkle, the appeals court considering his case posed an intriguing question: As a former federal official, is Meadows even eligible for removal?
There are arguments on both sides of the unsettled question, with the parties taking the positions you’d assume: Fulton County District Attorney Fani Willis says “no,” and the former White House chief of staff says “yes.”
But an important thing to remember is that even if Meadows is correct, that doesn’t mean he’ll win his removal fight. It just means he’s allowed to wage it.
The 11th U.S. Circuit Court of Appeals raised the issue in Meadows’ appeal of U.S. District Judge Steve Jones’ ruling against removal last week. Jones said Meadows can’t move his case to federal court because, when it comes to the alleged conduct in the election interference indictment, Meadows was acting as more of a political operative for then-President Donald Trump’s 2020 presidential campaign than as White House chief of staff. The distinction is pivotal because, to win removal, Meadows would have needed to show that his conduct was related to his role as a federal officer.
So, what led the appeals court to raise this threshold eligibility question? We got a hint in how the court asked it.
In its Tuesday order, the 11th Circuit noted that the law Meadows is using to try and remove his case applies to “any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity.” But the court noted that another part of the law applies to “any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State.”
To make things easier, I put part of that second line in italics to show what the 11th Circuit is suggesting. The implication is that the law Meadows relies on might not apply to former officers because another part of the law explicitly does, so if Congress wanted the law at issue in Meadows’ case to apply to former officers, it could have done so more obviously but chose not to.
Perhaps unsurprisingly, Willis took the bait and pointed out in her brief that the law Meadows cites is “silent” on the question, as compared with the law that is explicit.
Perhaps unsurprisingly, Willis took the bait and pointed out in her brief that the law Meadows cites is “silent” on the question, as compared with the law that is explicit. “This Court should recognize that the discrepancy in the language used by Congress in drafting and enacting these two subsections of the same statute was intentional,” the prosecutor wrote to the 11th Circuit.
So, what could Meadows possibly say to that?
For one thing, he quoted from the removal ruling against Trump in the former president’s New York state prosecution, in which the judge, in rejecting Trump’s removal bid, said it would “make little sense” if former officers couldn’t remove, “for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority.”
Relatedly, Meadows says the law at issue in his case focuses on the charged conduct, while the other law focuses on the person’s present status. His lawyers wrote: “Removability turns on, and has always been understood to turn on, the defendant’s federal duties at the time of the conduct charged, not at the time of prosecution or removal.” It’s unclear how the appeals court will resolve the question, if it even does so definitively. All we know at the moment is that there’s some interest at the court in resolving it. More broadly, all of this underscores how little case law there is on the removal issue — and how Meadows’ case could wind up being one that’s cited years from now, in addition to guiding any other removal litigation in the Georgia case in the short term. But however the appeals court chooses to handle this novel issue, remember that scoring this point would only keep Meadows in the game — he still needs to win it.
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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