Two New Amicus Briefs In Georgia Case Oppose Mark Meadows’s Request For Removal To Federal Court And Oppose His Effort To Use Supremacy Clause To Dismiss Case
Two amicus briefs were submitted on Monday to the U.S. Court of Appeals for the Eleventh Circuit in the case The State of Georgia v. Mark R. Meadows.
One brief concludes that Meadows’s case is not entitled to removal to federal court. The other brief concludes that Meadows’s request to dismiss his case based on the Supremacy Clause should be denied.
Meadows is one of 19 defendants, including former President Donald Trump, criminally charged by Fulton County District Attorney Fani Willis with election interference in their effort to overturn the 2020 presidential election result in Georgia.
Meadows has sought to remove his case from state court to federal court. Under the federal officer removal statute, 28 U.S.C. §1442, a federal officer who is charged with violating state law for activities taken within the scope of their official duties, and who is asserting “colorable” federal law defenses to the charges, can transfer their case to federal court.
In a ruling on September 8, U.S. District Judge Steve C. Jones rejected Meadows’s effort to remove his case and sent the case back to state court.
The judge found that “the actions at the heart of the State’s charges against Meadows were taken on behalf of the Trump campaign with an ultimate goal of affecting state election activities and procedures.” Meadows’s involvement, the judge found, was not within the scope of his duties as Chief of Staff to the President.
Because Meadows did not satisfy this first prong of the test for removal, Judge Jones did not decide the second issue of whether Meadows is asserting colorable federal defenses under the Constitution’s Supremacy Clause.
Meadows has appealed the district court ruling to the Eleventh Circuit, which will now consider Meadows’s argument. Meadows has again asserted that his criminal case should be heard in federal court because his actions were within the scope of his duties as White House Chief of Staff and that he has colorable federal defenses.
One brief, submitted by eight prominent former judges, prosecutors, and state and federal executive officials who served as high-level appointees in Republican Administrations and who have experience with the federal officer removal statute, focuses on whether the actions taken by Meadows, allegedly in violation of state law, were within the scope of his federal duties.
The brief concludes that Meadows’s case is not entitled to removal.
The conduct charged by the Fulton County District Attorney regarding election interference in the 2020 presidential election in Georgia, according to the brief, “bore no connection to any duty of Mr. Meadows’s (or Mr. Trump’s) office.”
Removal, the brief concluded, “would be perverse, as this prosecution arises from interference with state-government operations and seeks to vindicate Georgia’s voice in a federal election, the very contest from which federal authority flows.”
The second brief, submitted by five leading constitutional law experts, focuses on the second prong for removal and examines whether Meadows has colorable federal defenses under the Constitution’s Supremacy Clause.
That brief concludes that Meadows’s motion to dismiss his case based on the Supremacy Clause should be denied.
“To predicate removal to federal court on a Supremacy Clause immunity defense,” according to the brief, “Mr. Meadows must provide evidence that: (1) he had authority as Chief of Staff to the President to participate in then-President Trump’s efforts to overturn the 2020 election in Georgia; and (2) he did no more than what was necessary and proper in furtherance of that endeavor.”
According to the brief: “Far from showing that he was authorized to oversee or otherwise participate in a State’s selection of its presidential electors, federal law specifically prohibits such activity by the President’s Chief of Staff.” The Supremacy Clause, the brief concludes, does not apply.
Highlights from the two briefs follow.
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U.S. Court of Appeals for the Eleventh Circuit in the case The State of Georgia v. Mark R. Meadows
Brief For Former Judges, Prosecutors, And State And Federal Executive Officials As Amici Curiae In Support Of Plaintiff-Appellee And Affirmance
Amici: Eight prominent former judges, prosecutors, and state and federal executive officials who served as high-level appointees in Republican Administrations and who have experience with the federal officer removal statute. They include: J. Michael Luttig, former Judge of the U.S. Court of Appeals for the Fourth Circuit; Charles A. Fried, U.S. Solicitor General in the Reagan Administration; and Donald B. Ayer, Deputy Attorney General in the George H.W. Bush Administration. (See list of amici here.)
Highlights:
Removal “would be perverse, as this prosecution arises from interference with state-government operations and seeks to vindicate Georgia’s voice in a federal election, the very contest from which federal authority flows.”
“The federal-officer removal statute provides that an officer may remove a state prosecution only if it is ‘for or relating to any act under color of [his] office.’ 28 U.S.C. §1442(a)(1). That requirement is not remotely met here. Mr. Meadows is charged for his efforts to pressure election officials in Georgia to award the State’s electoral votes to Mr. Trump in the 2020 presidential election, as well as for supporting similar pressure applied by Mr. Trump himself. None of that conduct was grounded in any official duty of the White House chief of staff. Indeed, neither the Constitution nor any other source of federal law affords the chief of staff (or the president) any role in the selection of a State’s presidential electors. To the contrary, the executive branch is deliberately (and understandably) walled off from that selection process. There is thus no basis for removal.”
“Neither the president nor his chief of staff has any duty (or authority, for that matter) to superintend state election officials’ administration of a federal election in any way resembling the manner alleged.”
“The federal-officer removal statute reflects Congress’s concern that because federal officers may be required by law to take official actions that are unpopular with local populations, they could face unjustified state charges, which could in turn impede federal operations. That concern is not remotely implicated here.”
“To say the least, the statute’s purpose to prevent interference with federal operations would not be served by removing the charges against Mr. Meadows from Georgia state court. This prosecution does not threaten to impede any federal policy or prevent the federal government from carrying out its operations. […] It is Georgia, not the federal executive, that is responsible for administering the State’s selection of its presidential electors – including assuring the integrity of that selection. Allowing it to do so, including by leaving it to the State’s own courts to adjudicate any alleged violations of the State’s criminal laws, is in no way contrary to, and in fact is fully consistent with, the purpose of the federal-officer removal statute.”
The brief was prepared by former U.S. Solicitor General Seth P. Waxman, Daniel S. Volchok, and Joseph M. Meyer of Wilmer Cutler Pickering Hale and Dorr LLP; John Thomas Morgan III of J. Tom Morgan, Attorney, LLC; and Democracy 21 Education Fund President Fred Wertheimer.
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U.S. Court of Appeals for the Eleventh Circuit in the case The State of Georgia v. Mark R. Meadows.
Brief Of Constitutional Law Scholars And Former State Attorneys General As Amici Curiae In Support Of Appellees
Amici: Five leading constitutional law experts, including former Maryland Attorney General Brian Frosh; former Iowa Attorney General Tom Miller; University of California at Berkeley School of Law Dean Erwin Chemerinsky; and distinguished law professors and scholars Mark A. Graber and Peter M. Shane. (See list of amici here.)
Highlights:
The Supreme Court “has held that where a state prosecution unduly constrains the operations of the federal government, the Supremacy Clause may immunize a federal official from state prosecution. […] Mr. Meadows has not met the burden to establish that his case is so ‘exceptional’ as to have a colorable defense of Supremacy Clause immunity.”
“Far from showing that he was authorized to oversee or otherwise participate in a State’s selection of its presidential electors, federal law specifically prohibits such activity by the President’s Chief of Staff. [… ] The Hatch Act prohibits federal employees, other than the President and Vice President, from engaging in political activity in their capacity as a government employee. Prohibited political activity includes use of ‘official authority or influence for the purpose of interfering with or affecting the result of an election.’ Mr. Meadows’s activities fall squarely within the Hatch Act.”
Meadows “participated in meetings aimed at subverting the process of counting votes in Georgia and disrupting the count of duly cast electoral votes in the Senate. […] Indeed, Mr. Meadows’s own brief in the district court admitted that ‘[a]ll of the alleged conduct as to Mr. Meadows relates to protected political activity.’”
“The Supreme Court has made clear that a federal official is not entitled to Supremacy Clause immunity unless ‘he did no more than what was necessary and proper for him to do.’ The actions Mr. Meadows took to undermine the election in Georgia were certainly not necessary to his role of Chief of Staff and the evidence before the district court detailed numerous actions by Mr. Meadows that were improper by a Chief of Staff.”
“The Indictment details Mr. Meadows’s repeated attempts to impede the 2020 election in Georgia and nullify the votes of the state’s citizens. This is far more than was ‘proper’ for the job of a government official who has no role in elections and it is certainly not a ‘necessary’ part of the White House Chief of Staff’s role.”
The brief was prepared by Michelle Kallen, former Solicitor General of Virginia, Marcus Childress, former investigative counsel to the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol, and Mary E. Marshall, all of Jenner & Block LLP.
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