Mark Meadows's loss could embolden right-wing prosecutors
If you think Ken Paxton won't run wild with this ...
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On Monday, the Eleventh Circuit crushed Mark Meadows’s hopes of getting his criminal case in Georgia transferred to federal court.
But a little-noticed concurrence serves as a warning that state prosecutors might target former federal officials — including ones working for President Biden — if Congress doesn’t fix the law which allows federal officials to remove their cases from state court. And considering the state of Congress these days, that fix seems vanishingly unlikely.
The trial court
On August 14, Fulton County District Attorney Fani Willis indicted Meadows, who worked as Trump’s former chief of staff, and charged him with participating in a RICO conspiracy and soliciting a public officer to violate his oath. The very next day, Meadows filed a notice of removal, seeking to have his case transferred to federal court on the theory that he was acting as a federal official for purposes of the charged conduct.
US District Judge Steve Jones held a hearing where Meadows testified that he was acting as an agent of the president when he did the following: attempted to observe a restricted ballot audit in Cobb County, texted an election official "is there way to speed up Fulton county signature verification in order to have results before Jan if the trump campaign assist financially,” and participated in the infamous call where Trump pressured Secretary of State Brad Raffensperger to “find 11,780 votes, which is one more than we have.” When pressed to name something that would be outside his official duties, the best Meadows could come up with was giving a campaign speech — something specifically prohibited under the Hatch Act.
Judge Jones disagreed.
“The Court finds that the color of the Office of the White House Chief of Staff did not include working with or working for the Trump campaign, except for simply coordinating the President’s schedule, traveling with the President to his campaign events, and redirecting communications to the campaign,” he wrote. “Thus, consistent with his testimony and the federal statutes and regulations, engaging in political activities exceeds the outer limits of the Office of the White House Chief of Staff.”
Meadows appealed to the Eleventh Circuit, which expedited its review. But it also instructed the parties — that is, Meadows and the state of Georgia — to brief the court on an unanticipated issue.
The federal criminal removal statute
Under 28 U.S.C. § 1442, federal officials can get state cases transferred to federal court in very specific circumstances.
The statute was enacted in two parts: one after the War of 1812, and the other after the Civil War. The purpose of both parts was the same, however. Congress sought to protect federal officials from being hauled into state courts for simply enforcing federal law. Legislators reasoned that government agents were more likely to get a fair trial from Judge Senate R. Confirmed than from Judge Good O. Boy in the Podunk County courthouse.
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The problem is that the language of 28 U.S.C. § 1442(b), which deals with civil suits against non-resident government agents, explicitly allows a former federal official to remove to federal court. And the language of § 1442(a), which deals with civil or criminal cases generally, does not.
So with that in mind, here’s what the Eleventh Circuit asked:
In certain circumstances, 28 U.S.C. § 1442(a)(1) permits “any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity,” to remove a civil action or criminal prosecution from state court to federal court. Does that statute permit former federal officers to remove state actions to federal court or does it permit only current federal officers to remove? Compare 28 U.S.C. § 1442(a)(1), with 28 U.S.C. § 1442(b) (permitting removal of “[a] personal action commenced in any State court by an alien against 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 . . .”).
In plain English, the appellate panel wanted to know why Meadows, as a former federal official, was entitled to remove his case under this statute. And the question came out of left field, because most people who’d given the matter any thought had assumed that it simply had to.
For instance, US District Judge Alvin Hellerstein took that as a given when he rejected Trump’s effort to get his New York criminal case out of New York state court.
“It would make little sense if this were not the rule, for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority,” the judge wrote.
Bad drafting, bad laws
On Monday, the appellate court unanimously agreed with the trial judge that Meadows’s conduct was outside of his official duties.
“Electioneering on behalf of a political campaign is incontrovertibly political activity prohibited by the Hatch Act … Indeed, the political branches themselves recognize that electioneering is not an official federal function,” Judge William Pryor wrote for the three-judge panel.
But in a surprising twist, they all agreed that the plain language of the statute itself excludes former federal officials from using it to get their cases out of state court. So, even if Meadows had been doing official White House business back in 2020, he’d still have no way to get out of Fulton County Superior Court because he’s no longer a federal employee.
Congress is presumed to mean what it says. Also, this law has been on the books since 1948, and Congress modified the relevant section of code in 1996, 2011, and 2013 without amending the language in question.
“Our precedents establish that the decision to preserve grandfathered language despite a ‘clear ability’ to modify it is significant,” Judge Pryor wrote.
Pryor, a conservative icon whom Trump considered for a seat on the Supreme Court, seemed largely unbothered by the fact that his interpretation would subject former officials to potential prosecution in politically hostile locales. He reasoned that the main purpose of the law was to ensure that state officials don’t interfere with federal government business, not to protect individuals. He breezily waved away concerns about partisan local prosecutors by noting that former officials can still assert federal immunity in state court for official acts and can even seek Supreme Court review if they don’t like the result.
This is perhaps an unsurprising take from the former attorney general from Alabama, who moves through the world as a white man with the force of law behind him. But his fellow panelists, Judges Robin Rosenbaum and Nancy Abudu, suffered from no such lack of imagination.
In a concurrence joined by Judge Abudu, Judge Rosenbaum wrote:
Imagine that the day the President of the United States leaves office, sixteen states where his policies were unpopular indict him and all his Cabinet members, simply for carrying out their constitutionally authorized duties. Is it possible that state courts in those sixteen jurisdictions would fairly, correctly, and promptly resolve any federal defenses the former President and Cabinet members might have? Of course, it is. It may well even be likely. But given the local sentiment that led to the indictments in this hypothetical scenario, it's also possible they would not.
They note that the Supreme Court hears just a handful of cases every year, and that forcing “formers” to duke it out in state court and then pin their hopes of salvation on the high court is functionally no relief at all and will potentially “allow a rogue state's weaponization of the prosecution power to go unchecked and fester.”
“This nightmare scenario keeps me up at night,” Judge Rosenbaum continued, urging Congress to amend the law to protect formers and ward off “a potential threat to our republic's stability.”
And in a functioning democracy, the legislature would get right on that. But we don’t live in a functioning democracy. We live in a country where the House of Representatives held 724 votes and passed a grand total of 27 bills in 2023. (To be fair, like 100 of those votes were to pick a House speaker.) So the odds of Congress amending § 1442 in the near future are functionally nil — particularly when it might insulate former members of the Biden administration from the depredations of local prosecutors.
Two words: Ken Paxton
Today, the Eleventh Circuit’s interpretation of § 1442 is the law in Alabama, Florida, and Georgia. If Florida Attorney General Ashley Moody ever takes a break from harassing Disney, she now has the ability to indict former Biden administration officials in state court. But compared to Texas Attorney General Ken Paxton, Moody is a mere piker.
The Texas AG has used his office to attack everyone from parents of trans kids, to vaccine makers, to the state bar, which had the temerity to investigate him. He filed a ridiculous lawsuit seeking to overturn the 2020 election. He threatened to go after Twitter for forcing Elon Musk to go through with the purchase of the company, and then threatened the website Media Matters for publishing mean articles about X. The man loves nothing more than to sue the Biden administration.
If the Fifth Circuit adopts the Eleventh Circuit’s interpretation of § 1442, Paxton will immediately go after half of President Biden’s cabinet the second they are out of office and threaten them with criminal indictments. Imagine prosecutions of DHS Secretary Alejandro Mayorkas for human trafficking? Or HHS Secretary Xavier Becerra for allowing service members to travel out of state to receive abortion care? Or of Attorney General Merrick Garland for kidnapping January 6 rioters and holding them hostage? Or President Biden for all of the above.
This is nightmare stuff indeed, and yet entirely plausible. And while Paxton is uniquely lawless, he’s hardly the only Republican state law enforcement official who might be expected to launch revenge prosecutions of former Democratic officials. In short, we need to take this threat seriously now before banana republic AGs start flexing their evil, creative muscles.
That’s it for this week (and until next Wednesday)
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