NEW On Just Security: Answering Judge Jones’s Question Regarding Removal Of Mark Meadows’s Case
On Monday, federal district court Judge Steve C. Jones held an evidentiary hearing on Mark Meadows’s effort to remove Fulton County, Georgia’s prosecution of him in the Georgia 2020 presidential election interference case from Georgia state court to federal court.
Judge Jones requested supplemental briefing on the following issue:
“Count 1 of the Indictment (pertaining to Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-(c)) contains a number of overt acts attributed to Mr. Meadows. Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office, be sufficient for federal removal of a criminal prosecution under 28 U.S.C. § 1442(a)(1)?”
“The answer to the court’s question is no,” legal experts Amb. Norman Eisen (ret.), Joshua Kolb, and Andrew Warren write in a detailed legal analysis published today on Just Security.
The authors explain: “A finding that one or more, but not all, of the overt acts alleged in the indictment was taken by Meadows under the color of his office would not be sufficient for federal removal of his Georgia state criminal prosecution under 28 U.S.C. § 1442(a)(1).”
Eisen, Kolb, and Warren explain in depth several reasons, each of which independently establishes that removal is not warranted on the basis of the possibility raised by the court’s question.
Their analysis, excerpted in brief here, explains:
1. Even if a subset of Meadows’s overt acts occurred under the color of his office, as the court’s question stipulates, the connection between the charged conduct and his office would still be “too tenuous to support removal.” Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 234 (4th Cir. 2022).
2. In order to warrant federal removal of a state criminal prosecution, a defendant must establish: (1) that the defendant was an “officer, or any person acting under that officer, of the United States”; (2) that the defendant is charged “for or relating to any act under color of such office”; and (3) that the defendant has raised or will raise a “colorable federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989). Whatever the ultimate disposition of the first two prongs, a finding that one or more of the overt acts alleged to have been taken by Meadows would not establish the third prong. Put more pointedly, one or more overt acts under color of law would not provide a defense, or satisfy immunity from prosecution, for the alleged RICO conspiracy (nor for Count 28 in the Georgia indictment).
3. The charge against Meadows for violating GA Code § 16-14-4(c) does not require that Meadows have taken any overt act at all. As a result, the indictment states an offense under that statutory provision, even if it does not allege any overt act by Meadows – and thus it still does so regardless of whether any overt act alleged was taken under the color of Meadows’s office.
4. There is no authority that directly supports the position that a single colorable overt act is sufficient. The civil case Mayor v. Cooper, as quoted by the Mesa court, is consistent with the State of Georgia’s position. Mesa states: “Cooper contended that the removal statute was unconstitutional. In upholding the statute’s constitutionality, we observed: ‘Nor is it any objection that questions are involved which are not all of a Federal character. If one of the latter exist, if there be a single such ingredient in the mass, it is sufficient. That element is decisive upon jurisdiction.” Mesa v. California, 489 U.S. 121, 129 (1989) (citing The Mayor v. Cooper, 6 Wall. 247, 252 (1868)).
5. If the court finds that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s federal office is sufficient for removal, the court should give the State of Georgia the opportunity to remove those alleged acts from the indictment or else to simply seek a superseding indictment without those alleged acts.
Read the full analysis on Just Security.
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