Shaub/Eisen/Kolb in Just Security: The Hatch Act Bars Meadows’s Removal Bid
On Monday, August 28, at 10:00 AM EDT, federal district court Judge Steve C. Jones will hold an evidentiary hearing to evaluate a filing by former Trump chief of staff Mark Meadows to remove his case in the Georgia 2020 presidential election interference case from state court to federal court. Meadows is one of 19 defendants in the Fulton County, Georgia case, including former President Donald Trump, charged with a conspiracy to interfere with the 2020 presidential election results in Georgia.“Even though the legal hurdle is low and the law is favorable to federal officers, Meadows faces a seemingly insurmountable barrier,” Walter Shaub, Amb. Norman Eisen (ret.), and Joshua Kolb write in an analysis published this morning on Just Security. Meadows has argued in a brief to the court that the charges are connected to his former role as Chief of Staff to the President and that these acts were “part of his service in that role.” “Meadows, however, had no authority as Chief of Staff to engage in the charged conduct,” Shaub, Eisen, and Kolb write. “He was subject to the Hatch Act, a law that clearly forbade all federal employees from engaging in the sort of conduct charged.” Shaub, Eisen, and Kolb explain: “Put more strongly, the Hatch Act severs any evidentiary or legal thread with which Meadows could hope to tie the Chief of Staff’s official authority to the charged conduct. The law unambiguously prohibits [all federal employees, including] the Chief of Staff from using ‘his official authority or influence for the purpose of interfering with or affecting the result of an election.’ 5 U.S.C. § 7323(a)(1). To stitch together the severed thread between his conduct and his former role, Meadows tries in vain to pretend that the Hatch Act does not exist — or that it is inapplicable, unconstitutional, or amenable to violation by presidential aides. But that thread cannot be mended.” The authors further unpack Meadows’s flawed legal argument: “More to the point, meddling in the administration of a presidential election, even at the behest of the President, is not equivalent to providing personal support for the President in his travels. It is a corruption of the meaning of ‘assisting’ in this context, akin to suggesting there is an equivalence between bringing a President his food and poisoning the food of a rival at the President’s direction. The Hatch Act itself provides this sharp demarcation, expressly separating out the electioneering activities and election interference charged by [Fulton County DA Fani] Willis from being official conduct.” Meadows also cannot plead ignorance of the Hatch Act, the authors write. “Far from being unaware of it, he has been open about his knowledge of and disrespect for that law. Responding to public concern about the Hatch Act in August 2020, Meadows stated: ‘So listen, this is a lot of hoopla that’s being made about things, mainly because the convention has been so unbelievably successful.’ He revealed his contempt for the Hatch Act by saying: ‘Nobody outside of the Beltway really cares. They expect that Donald Trump is going to promote Republican values and they would expect that Barack Obama, when he was in office, that he would do the same for Democrats.’” And, during a congressional hearing in 2019, Meadows said: “I know the Hatch Act statute. I actually read it.” The authors conclude: “Meadows has not so far met his burden in seeking to remove his criminal case to federal court, and he likely cannot meet it at the evidentiary hearing. While that burden may not be especially high, ‘the person seeking the benefit of [federal officer removal] should be candid, specific and positive in explaining his relation to the transaction growing out of which he has been indicted, and in showing that his relation to it was confined to his acts as an officer.’ Colorado v. Symes, 286 U.S. 510, 520 (1932). Meadows cannot show that the charged conduct was ‘confined to his acts as an officer’ because the Hatch Act — a federal law with which he admits familiarity — forbade him from acting as Chief of Staff when committing charged conduct. He did not act in relation to his official capacity because, as a matter of law, he could not have done so. The Hatch Act stripped him of the cloak of official authority at all times relevant to the charges. His apparent disrespect for that authority-stripping law, which his reply contains further evidence of, cannot substitute for the requisite connection between the conduct and his official role. As the State of Georgia urged the court, ‘His Notice of Removal must fail.’”
The authors:Walter Shaub has advocated for integrity and accountability in government across a career in public service, focusing on preventing abuses of government power and resources, reforming government ethics systems, and holding government officials accountable to the public they serve. Amb. Norman Eisen (ret.) served in the White House as special counsel and special assistant to the President for ethics and government reform and as ambassador to the Czech Republic under President Obama. He served as special counsel to the House Judiciary Committee (2019-2020), including for the first Trump impeachment.Joshua Kolb writes in his personal capacity. He served as a law clerk on the Senate Judiciary Committee.
