A Gentler Trump in Georgia Signals a Shift in Strategy

The former president appears to be taking a different approach than the combative one he has adopted at the District of Columbia.

AP/Charlie Riedel
President Trump during a rally at Council Bluffs, Iowa, July 7, 2023. AP/Charlie Riedel

President Trump’s decision to pass on trying to move his Georgia criminal case to federal court suggests that he sees it as so forbidding that he is willing to chance his liberty at Fulton County, a Democratic stronghold. It also could herald a bespoke litigation strategy in the Deep South, even as the first Peach Tree State defendant, Scott Hall, has plead guilty and will now cooperate with prosecutors.   

The decision, at least with regard to venue, to forego further litigation — a restraint that does not rhyme with the former president’s legal modus operandi— suggests that Mr. Trump could be trying a different strategy in the Peach Tree State than at the District of Columbia, where his January 6 trial has been marked by confrontation with judge and prosecutor alike.  

President Trump filed a notice in Georgia state court that he will “not be seeking to remove his case to federal court” because of “his well-founded confidence that this honorable court intends to fully and completely protect his constitutional right to a fair trial and guarantee him due process of law.” Is he dreaming? Or has he come down with a case of the nerves?

In the District of Columbia, his commentary has been so acerbic he risks being gagged. The respectful words for the state court judge, Scott McAfee, certainly stand in contrast to how Mr. Trump has addressed Judge Tanya Chutkan, who is presiding over the federal case against Mr. Trump with respect to January 6.

He has called the Obama-nominated jurist, who has handed down harsh sentences to January 6th defendants and made critical remarks about Mr. Trump from the bench, a “fraud” and requested her recusal, a motion that failed. Judge McAfee was nominated to the Georgia bench by Governor Kemp, a Republican.  

The former president’s decision to stay put might well be informed by the experience of his erstwhile chief of staff, Mark Meadows. The North Carolinian was the first to attempt the leap to federal court, and he has been stymied. A district court judge, Steve Jones, found that the “actions at the heart of the State’s charges against” Mr. Meadows “were taken on behalf of the Trump campaign,” and not in his capacity as chief of staff. 

Friday saw another bid for removal fail, this one assayed by one of Mr. Trump’s co-defendants and a former assistant United States attorney general, Jeffrey Clark. Judge Jones found that the “evidence does not support” that Mr. Trump reconfigured Mr. Clark’s “duties to include election investigation or oversight,” meaning that the alleged interference for which he has been charged was not ascribable to his federal duties.   

If, as Judge Jones noted, Mr. Meadows “has not met even the ‘quite low’ threshold” to relocate his case, Mr. Trump could figure that he too would fail to clear the bar. In foreclosing that path though, the former president’s attorneys are yielding distinct advantages. A federal jury pool, drawn from several counties, is likely to be more heterogeneous than one solely sourced from Fulton County. 

Now, Mr. Trump will have to mount his defense in state court, even though the charges against him date from when he was America’s commander in chief. It appears likely that, like Mr. Meadows — although, Mr. Trump hopes, to greater effect  — the former president will invoke federal defenses, even in a state courtroom. 

That effort could assume two prongs. First, Mr. Trump will likely argue that the charges handed up by District Attorney Fani Willis are precluded by the Constitution’s Supremacy Clause, which ordains that when federal and state law collide, federal law triumphs. 

The challenge for Mr. Trump will be persuading Judge McAfee that the Constitution protects a president’s intervention in how states conduct their elections. The 12th Amendment appears to assign that task to the “respective states,” not the White House. That, at least, is the position that Vice President Pence took on January 6.   

Mr. Trump could also venture an argument that he is immune from state prosecution for actions he undertook while president. The Department of Justice has taken the position that sitting presidents should not be prosecuted because that would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” as detailed in the Constitution’s Take Care Clause. Whether that immunity extends into a post-presidency, though, is an untried question.       

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