Prominent Former Judges & Officials In GOP Administrations Submit Brief Opposing Meadows, Clark Removal Of Georgia Criminal Case
A group of eight prominent judges and attorneys who served as high-level appointees in Republican Administrations submitted an amicus brief on Wednesday night in the U.S. District Court For The Northern District Of Georgia, Atlanta division, opposing Mark Meadows’s and Jeffrey Clark’s efforts to remove to federal court the 2020 presidential election interference case brought in Fulton County by District Attorney Fani Willis.
Meadows, former chief of staff to former President Donald Trump, and Clark, former acting Assistant Attorney General of the Justice Department’s Civil Division in the Trump Administration, were among 19 charged with conspiring to interfere with the 2020 presidential election results in Georgia. Citing the federal-officer removal statute, Meadows and Clark each requested that their cases be removed to a federal court. The brief shows that the requests are contrary to applicable law.
The amici on the brief are former judges, prosecutors, White House lawyers, and other officials with experience in both state and federal court in Republican Administrations, including experience with the federal-officer removal statute. As such, they have an interest in the proper division of responsibility between state and federal courts as well as in the just enforcement of criminal laws.
The eight amici 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. The amici also include a former Assistant Attorney General and Acting Attorney General; three former U.S. Attorneys; a former New Jersey Attorney General; and a former Associate White House Counsel.
“The Constitution of the United States confers upon the 50 States a compelling interest in prosecuting — in their own courts — criminal interference with their administration of federal elections,” according to the brief. “Consistent with the States’ constitutional authority over the integrity of the federal elections they administer, the federal-officer removal statute, 28 U.S.C.§1442, does not permit removal here.”
Removal of the Meadows and Clark cases from the state court to federal court, the amici write, “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.”
Meadows and Clark have argued that the charges in the Georgia case relate to their roles in federal government. But, the amici point out, removal of a state criminal prosecution to federal court is permitted by the federal-officer removal statute only where a federal officer both faces criminal charges for conduct arising under color of his office and identifies a colorable federal defense. Neither of those elements is satisfied in the Meadows or Clark case, according to the brief.
“The conduct charged here by the Fulton County District Attorney — interference by Mark Meadows and Jeffrey Clark with the 2020 presidential election in Georgia in order to aid Donald Trump’s candidacy — bore no connection to any duty of Mr. Meadows’s, Mr. Clark’s, or Mr. Trump’s office,” according to the brief.
The brief continues:
“Neither the President nor anyone else in the executive branch has any duty to superintend or participate in a State’s selection of its presidential electors. And there is no plausible basis for Mr. Meadows or Mr. Clark to claim Supremacy Clause immunity, protection under the First or Fourteenth Amendment, or any other federal defense to the charges. Finally, the purpose of the federal-officer removal statute — to protect federal operations by preventing retribution in state court for locally unpopular exercises of federal authority — would not be served by removal here.”
The amici make three key arguments in their brief:
1) Meadows and Clark were indicted for electioneering conduct unrelated to any duty of their offices.
“Neither the President, his chief of staff, nor the Department of Justice has any duty (or authority, for that matter) to superintend state election officials’ administration of a federal election in the manner alleged,” according to the brief, which points out that the Constitution empowers the states and Congress to regulate the conduct of federal elections.
Further, the brief notes, the federal Electoral Count Act prescribes no role for the President, the White House chief of staff, or the Justice Department.
2) Meadows and Clark have no colorable federal defense.
To remove a case against him, the brief explains, a federal officer must raise a colorable defense arising out of his duty to enforce federal law. The brief explains, point by point, why Meadows’s and Clark’s arguments are flawed.
Meadows’s and Clark’s principal purported federal defense is that their conduct is shielded by Supremacy Clause immunity, but, the brief points out, “[n]one of the conduct for which Mr. Meadows or Mr. Clark is charged arose from or is related to any duty imposed on him by federal law.”
Meadows invokes the First and Fourteenth Amendments as “contingent defenses,” should the Court reject his claim of Supremacy Clause immunity.
Even if there were any merit to those defenses (and, the brief points out, there isn’t), it is unlikely either could satisfy the colorable-federal-defense requirement for officer removal.
Clark’s unsupported invocation of the First Amendment fails for the same reasons, the brief notes.
3) Removal would not serve the purpose of the federal-officer removal statute.
The federal-officer removal statute, the brief explains, “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.”
The brief continues: “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 or Mr. Clark from Georgia state court. […] 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 concludes:
“The Constitution entrusts the administration of federal elections to the States. It deliberately insulates such administration from the President and his staff. Consistent with that constitutional design, the federal-officer removal statute does not permit removal here.”
Former U.S. Solicitor General Seth P. Waxman of Wilmer Cutler Pickering Hale and Dorr, LLP is the lead attorney on the amicus brief.
Other attorneys on the brief include: Daniel S. Volchok and Joseph M. Meyer of Wilmer Cutler Pickering Hale and Dorr, LLP; Democracy 21 Education Fund President Fred Wertheimer; and John Thomas Morgan III, an attorney based in Decatur, Georgia.
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