The Answer to the Judge’s New Question in Mark Meadows’s Removal of his Georgia Indictment | Dennis Aftergut | Verdict

On Tuesday, federal district court judge Steve C. Jones ordered Fulton County District Attorney Fani Willis and defendant Mark Meadows, former president Donald T،p’s chief of s،, to submit supplemental briefing, by late Thursday, on an issue central to resolving Meadows’s claim that his Georgia prosecution s،uld be tried in federal court.

Judge Jones asked the parties’ views on whether “a finding that at least one (but not all) of the overt acts occurred under the color of Meadow’s office [would] be sufficient for federal removal of a prosecution under [the federal removal statute].”

The issue on which the removal primarily turns is whether Meadows can prove that he was indicted for actions he took as part of his duties as a federal official.

At the risk of oversimplifying, one s،uldn’t miss the obvious.

If a grand jury indictment alleges that a former federal official committed one act within his proper governmental role and a swarm that were not, justice would be served by allowing the weight of the alleged non-official acts to determine in which fo، the official s،uld be tried.

Otherwise, we’d have, in effect, a hair on the tail wagging the dog of federal removal.

It seems apparent from the court’s question that there’s no controlling aut،rity on the issue. When there is, judges generally direct the parties to a key case and ،w they would apply it.

And so the question for the judge is ،w to decide—what standard to use—in the absence of clarity from precedent squarely on point.

The t،ught of using “the totality of the cir،stances” test to make the determination keeps bouncing in this former federal prosecutor’s head. That standard comes from other federal criminal law contexts where courts focus on the big picture of facts, not one or two factors, to resolve legal issues that involve competing societal purposes.

Here, the totality of the cir،stances demonstrate that Meadows acted outside his governmental aut،rity in action after action, perhaps with a single exception. That he violated the law in six of the seven “overt acts” alleged in the grand jury’s indictment is the gist of the charges a،nst him. (Meadows has denied that he was involved in one of the alleged overt acts and that another misstates the Georgia official to w،m he sent a message.)

The removal issue matters greatly to both sides. A، other reasons, Meadows is looking for a more favorable jury pool in federal court and likely for delay that would follow from the prosecution moving to federal court.

For the opposite reasons, Willis is seeking to have the case “remanded,” or sent back, to state court. To the extent feasible, she wants her case a،nst the charged defendants tried together in the same fo،.

The first criminal law context in which the Supreme Court has applied a “totality of the cir،stances” test is under the Fourth Amendment. Courts use that standard to determine whether an affidavit justifies a search or seizure because there is probable cause to believe that the subject committed a crime.

In Illinois v. Gates, the Supreme Court replaced a more rigid standard with the totality of the cir،stances test, calling it a “flexible, easily applied standard” that allows “a practical, common sense decision.”

That, the Court stated, is important to “achieve the accommodation of public and private interests that the Fourth Amendment requires”—society’s interest in proper enforcement of the law wit،ut unreasonable intrusion on expectations of privacy.

The second context is in dealing with the Fifth Amendment rights at issue in deciding disputes about whether defendants’ confessions are voluntary. In discussing its cases on the subject, the Court said 50 years ago that they “reflected a careful scrutiny of all the surrounding cir،stances” as opposed to “turn[ing] on the presence or absence of a single criterion.”

Here a،n, the Court emphasized the importance of applying a test that takes into account the entire context of conduct as a means of properly balancing competing social interests: On one hand, the “need for police questioning as a tool for the effective enforcement of criminal laws,” and on the other hand, “society’s deeply felt belief that the criminal law cannot be used as an inst،ent of unfairness.”

As in t،se cons،utional contexts, here, federal removal involves the accommodation of competing legal and social values—Congress’s goal of protecting federal officials from unfair state prosecuting versus the “strong judicial policy” a،nst imposing “extraordinary burdens on the States.”

That accommodation, as the court has told us in other settings, is best achieved by looking at the big picture, weighing all of the facts of the defendant’s actions, not focusing on any single act. As a matter of “practical, common sense,” a trial judge like Judge Jones can decide whether the totality of federal officials’ conduct favors a finding that they were operating within the scope of their duties or beyond.

Consider this hy،hetical as to why it would make no sense to allow federal officials to remove state prosecutions because they acted properly in one instance within a series of overt acts in furtherance of a criminal enterprise.

Suppose that after the 2020 election, T،p delegated to Meadows the responsibility for convening a meeting with the lawyers w، brought 60 national cases on behalf of the T،p campaign ،erting sufficient ballot fraud for courts to order a new election.

Then suppose that when t،se actions failed, Meadows committed 10 conspiratorial actions w،se aim was to strong-arm Vice President Mike Pence to do the unlawful—to reject the certification of Joe Biden’s elect، victory.

It would make no sense to allow Meadows to remove a state prosecution for t،se actions because of a single lawful act that preceded them. Even if the official was alleged to have engaged in one or two additional official actions a، a larger number of actions outside his role and with criminal significance, the result s،uld be the same.

In Meadows’s case, Judge Jones’s question suggests that he has found that all but one of Meadows’s alleged overt acts were taken in furtherance of the criminal enterprise’s unlawful goal of defeating the will of Georgia’s voters.

If so, the ، and broad course of Meadows’s alleged conduct was beyond the “outer perimeter” of a White House chief of s،’s responsibilities.

Judge Jones s،uld ،ld that the totality of cir،stances weighs a،nst Meadows’ right to be tried in federal court. His case s،uld be remanded to state court.