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(Photo by Alex Wong/Getty Images)
On Friday, Judge Steve Jones bounced Mark Meadows back to Fulton County Superior Court. Meadows had hoped to remove his Georgia RICO prosecution to federal court under 28 U.S.C. §§ 1442 & 1455, claiming that he had only interfered with the presidential election as part of his official duties as White House chief of staff. But Judge Jones found no federal jurisdiction because, while some of the overt acts in support of the conspiracy fell within the ambit of Meadows’s job, the charged conduct itself did not.
Even if a criminal defendant can characterize individual instances of behavior as part of his official duties within the broader charged conduct, this is not enough to convey subject matter jurisdiction on this Court. Put differently, facts indicating that a criminal defendant at times operated under the scope of his federal office will not provide this Court with subject matter jurisdiction under Section 1442 unless the State is criminally prosecuting the officer for those specific acts.
Within hours, Meadows appealed to the Eleventh Circuit, as well as filing motions to stay the remand order in both the trial and appellate courts. The practical effect of such a stay is unclear, since state prosecutions continue (except as to final judgment) until another court assumes jurisdiction. But if the court is going to take more than ten minutes to decide, the appellant would like an injunction on the state prosecution, to “prevent the irreparable loss of Meadows’s rights.”
“The court below egregiously erred in rejecting removal,” he complains, calling Judge Jones’s ruling “clearly erroneous” and requesting an expedited briefing schedule which could lead to a ruling by the end of the month. And the as-yet unnamed panel obliged, ordering DA Willis’s office to respond by noon tomorrow, September 13.
But they also added a bizarre wrinkle of their own, instructing the parties to brief an issue that was never raised below:
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 . . .”).
The appellate judges appear to be wondering if Meadows, as a former federal official, has the right to remove his case at all. The delta is between § 1442(a)(1), which permits a current federal officer to effect civil or criminal removal “for any act under color of such office,” and § 1442(b), which allows for removal of civil suits when the defendant “is, or at the time the alleged action accrued was, a civil officer of the United States.”
On the one hand, multiple federal circuits have extended removal protection even to government contractors, who were never federal officials. On the other hand, Congress clearly knew how to include former federal employees when it was drafting the law, and it chose not to.
If indeed the panel concludes that criminal removal in unavailable to former federal employees, that would be fatal to Meadows, as well as to former DOJ attorney Jeff Clark and the three fake electors charged in Fulton County, all of whom are seeking federal removal. It would also doom Donald Trump, who appears to have been hanging back in hopes of piggybacking off a successful removal by Meadows. (John Eastman has also been making noise about seeking federal removal, although, to be fair, he makes quite a lot of noise on the regular.
So, on the one hand, it’s good news for Meadows, in that he’s clearly going to get the expedited review he seeks. But if the court decides there’s no remedy for former federal officials charged with state crimes, he may well be shit out of luck.
State of Georgia v. Meadows [District Court Docket via Court Listener]
State of Georgia v. Meadows [Eleventh Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
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