The Cutting Edge Constitutional Question That Could Determine Trump’s Fate in Georgia

The question is whether a former federal officer retains the right to have his case heard in federal court. In Georgia, the answer will immediately shape the trials of Trump and his former chief of staff.

AP Photo/Charlie Neibergall
President Trump visits the Alpha Gamma Rho, agricultural fraternity, at Iowa State University before an NCAA college football game between Iowa State and Iowa, September 9, 2023, at Ames, Iowa. AP Photo/Charlie Neibergall

An emerging debate that cuts to constitutional bedrock could decide whether President Trump stands trial in Georgia state court — with its deep-blue jury pool — or the friendlier terrain of federal court.

The question, now before the riders of the 11th Circuit of the United States Court of Appeals, is whether a former federal officer retains the right to have his case heard in federal court. In Georgia, the answer will immediately shape the trials of Mr. Trump and his former chief of staff, Mark Meadows.

While Mr. Trump has not yet formally moved for removal, he has filed a note with the presiding state court judge, Scott McAfee, that he “may seek removal of his prosecution.” It appears likely that he is awaiting the resolution of Mr. Meadows’s effort to reach federal court. 

While the one-time commander-in-chief and his former chief of staff would still face state charges in federal court, there would be advantages to the move. District Attorney Fani Willis, who briefly served as a state magistrate judge, would be more comfortable in Peach Tree state environs.

Then there is the jury pool question. A state trial would draw its jury exclusively from Fulton County, where President Biden won 72 percent of the vote in 2020. The pool for a federal jury, though, would be sourced from the Northern District of Georgia, which comprises not only Fulton but also counties like Cherokee, where Mr. Trump’s support amounted to nearly 69 percent.    

The trial’s setting would be determined by the riders of the 11th Circuit, who reached this constitutional terra incognita via the effort by Mr. Meadows, thus far stymied, to reach federal court. The district court, though, rebuffed him and found that his actions were “not related to his role as White House Chief of Staff or his executive branch authority.”

Mr. Meadows appealed that decision, a petition that will now be heard by the appellate jurists. The right to removal is rooted in the 14th Amendment’s right to due process, the Sixth Amendment’s promise to criminal defendants of an “impartial” hearing, and the Framers’ overarching commitment to the separation of powers.   

These commitments find expression in the federal law that allows for a federal venue for any “officer of the United States” who acts under the “color” of his or her office. The statute, though, is silent on the question of whether it applies to a former officer of the United States. 

Ms. Willis, who is prosecuting Messrs. Trump and Meadows along with 17 others, argues that the court “cannot authorize removal of a state criminal prosecution against a former federal officer.” She maintains that “Congress did not intend for removal to federal court of state criminal prosecutions” to apply to erstwhile officers. 

Ms. Willis reasons that because the goal of removal is to “prevent state interference with the operations of the federal government, a state prosecution of a former federal officer can hardly interfere with such operations when that former federal officer no longer has any role in the operations of the federal government.”

Because Mr. Meadows now “plays no role whatsoever in any of the ongoing operations of the federal government,” there is no federal interest to protect, and the federalism concerns of the Framers — resulting in states exercising their own sovereignty, as long as it does not conflict with that of the federal government — are no longer at risk.

Mr. Meadows, though, in response to the court’s question of whether removal is available to former federal officers as well as current ones, responds that “the answer is ‘yes.’” He appeals to common usage, suggesting that “officers of the United States” is not a time-limited status, analogizing it to someone bragging  about “‘pictures with seven Presidents,’ even if they are now out of office, and even if they were when the pictures were taken.”

Ms. Willis alleges in her indictment that the “overt acts” Mr. Meadows is alleged to have committed in furtherance of what she calls a “criminal enterprise” occurred between November 20, 2020, and January 2, 2021. Mr. Biden was not inaugurated until January 20, meaning that Mr. Meadows would have still held his office during the stretch of time in question.   

The former chief of staff reckons that he “is not aware of any case suggesting, much less holding, that a former official is categorically ineligible for removal. Not a single case in 140 years.” Instead, he argues that removal turns on the “defendant’s federal duties at the time of the conduct charged, not at the time of prosecution or removal.” 

Mr. Meadows’s position that “having a current officer for a defendant is not the touchstone” for removal to federal court will now be tested by the 11th Circuit and, possibly, the Supreme Court. Mr. Trump, who has already lost one such bid in his New York criminal case, could now find his fate following to Mr. Meadows’s footsteps.

The New York Sun

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