There’s No Way the Georgia Prosecutions of Donald Trump and Mark Meadows Belong in Federal Court

Last week, Donald Trump’s former White House chief of staff Mark Meadows’ bid to remove his criminal case to federal jurisdiction was rejected by a district court in Georgia. In an utterly pellucid, though technically dense, 49-page opinion, District Judge Steve C. Jones explained what should have been obvious from the start: attempting to manipulate state election operations as part of an illegal plot to overturn the results of a valid presidential election is not among the official duties of the chief of staff of the U.S. president. As Jones wrote: “Even if Meadows took on tasks that mirror the duties that he carried out when acting in his official role as White House Chief of Staff (such as attending meetings, scheduling phone calls, and managing the President’s time) he has failed to demonstrate how the election-related activities that serve as the basis for the charges in the Indictment are related to any of his official acts.”

This point should have been obvious to Meadows’ legal team. If the president asks the secretary of the treasury to rob a bank, she cannot claim she acted in her official capacity in performing such actions and seek to remove to federal court in order to assert an immunity defense. That’s because the Department of the Treasury is not in the business of robbing banks. Similarly, the executive branch is not in the business of overseeing state election procedure, outside the domains identified by federal law as authorizing federal enforcement of individual rights. If Trump demanded that Meadows participate in a group enterprise to overturn the results of a presidential election, he was asking him to go far beyond his job description.

A second reason Jones reached the right decision on the Meadows removal motion is that the activities Meadows was engaging in were highly political in nature, and such activities are strictly forbidden under 5 U.S.C. § 7323(a)(1), otherwise known as the “Hatch Act.” This statute forbids executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” It is designed to prohibit executive branch employees from using their official positions to engage in partisan political activities.

In August of 2020, Richard Painter and I filed a complaint against Secretary of State Mike Pompeo, for example, for the speech Pompeo gave at the Republican National Convention while on a diplomatic mission to Israel. This was a “personal capacity” speech delivered during an official business trip as secretary of state, while Pompeo was representing the United States in his official capacity—a clear Hatch Act violation. While the president and vice president are not subject to the Hatch Act, they are subject to a parallel criminal Hatch Act statute that makes it a crime to coerce political activity on the part of any federal executive branch official. Believing as we did that Trump was indeed attempting to pressure members of the executive branch into engaging in Hatch Act violations themselves, Richard Painter and I filed a criminal Hatch Act complaint under 18 U.S.C. §610 against Trump during the 2020 campaign, alleging that he was coercing political activity on the part of employees in the executive branch by attempting to “intimidate or coerce” them into supporting his aims.

In the Georgia indictment, the Hatch Act plays a critical role: The activities Meadows performed in the run-up to the Jan. 6 attack on the Capitol building constituted a contribution to a partisan political effort to ensure that Trump was declared the winner of the 2020 election, despite having lost that election completely. Such naked political activities cannot be official duties for anyone who is a federal executive branch office holder. The entire Georgia campaign reads like one big Hatch Act violation—a civil Hatch Act violation for federal officeholders like Meadows and a criminal Hatch Act violation for Trump for pressuring his subordinates into civil Hatch Act violations.

It is striking how similar Trump’s behavior in Georgia in 2020 is to the criminal Hatch Act complaint we filed against Trump. The “perfect” phone call with Georgia Secretary of State Brad Raffensperger in which Trump attempted to coerce Raffensperger into coming up with 11,780 votes in order to reverse the results of the election in Georgia was an attempt to intimidate state officers into supporting Trump’s personal political aims—conduct that is precisely what the criminal Hatch Act provision was meant to address in the case of federal officers. In this case, the officers just happened to be state officials for the most part, with the possible exception of Meadows and other federal officials Trump tried to rope into his campaign.

It’s fortunate that the right outcome was achieved at the district court level. The law of executive branch immunity has been a complex web of confusion and misimpressions for many years and one might have expected things to go awry. Given that cases on this topic are few and far between, there is great risk of error on the part of courts and abuse on the part of litigants. Consider, for example, a case decided just several weeks prior to the Meadows decision, in which a Pennsylvania judge found that Trump had “absolute immunity” against James Savage, a voting machine supervisor, who sued Trump for defamation. Savage suffered two heart attacks after receiving death threats from MAGA protesters who, inspired by Trump, Rudy Giuliani, and other close associates of Trump’s trying to overturn the results of the 2020 presidential election, became convinced Savage had tampered with voting machines to falsify the election in Joe Biden’s favor. Citing the 1982 case of Nixon v. Fitzgerald, Judge Michael Erdos noted that the test is whether the president’s speech or actions fall within the “outer perimeter” of the president’s official duties. Erdos went on to say that “speaking on matters of public concern is part of a President’s official duties” and that the question of the integrity of the 2020 presidential election “was undoubtedly a matter of great public concern.” But the fact that the integrity of the 2020 election is a matter of grave public concern does not mean that anything said on that subject by a sitting president is protected by presidential immunity. In particular, words designed to further an illegal plot to overthrow the results of a valid election are not protected. Simply put, they cannot be part of any president’s or other high official’s duties.

The Pennsylvania case is civil, not criminal. On the face of it, the principle of presidential immunity has a better chance of succeeding for civil than criminal actions. In the defamation suit by E. Jean Carroll against Trump, for example, even Merrick Garland initially came to the conclusion that the Department of Justice had to defend Trump under the Westfall Act against Carroll, on the grounds that denying that he had raped her in Bergdorf Goodman in the mid-1990s was “an official function” of the presidency. The specter of the Garland Justice Department representing Trump against Carroll was particularly disturbing after a civil jury found that Trump had indeed sexually assaulted Carroll, precisely as she alleged. (Garland has since changed his mind about this case, as Painter and I have urged.) But Supreme Court jurisprudence has drawn little distinction between criminal and civil cases in this regard. The line of Supreme Court cases dealing with presidential immunity, which began with United States v. Burr in 1807, through Trump v. Vance in 2020, includes Clinton v. Jones, in which the Supreme Court ruled that President Bill Clinton had to sit for a deposition in a civil case in which he was questioned about intimate details of his sexual encounters with a White House intern. And whatever one thinks about such civil cases, asserting immunity for official capacity action in a criminal case is a much further bridge than accepting an official capacity argument in a civil case.

This leads us to a third reason the official capacity argument fails in Meadows’ case: Presumably it would fail to give him what he wants from it. Meadows legal team went down the road of arguing official capacity because they likely planned not only to remove to federal court, but once there to argue that Meadows bears no personal responsibility for the acts identified in the indictment because he did so at the president’s behest. This argument should be familiar from the “following orders” claims many defendants of the Nuremberg tribunal after the Second World War offered in their defense. But the “just following orders” argument should utterly fail, even if Meadows’ actions had been conducted in his official capacity (again, they weren’t). The fact that someone engages in an action as an official occupying high office can never be a basis for exoneration, since any commission of a crime, even in an official capacity, is still a crime.

This latter point has been obscured in recent arguments and scholarship on executive authority, and there is danger that the legal profession may no longer be as clear on the point as it should be. Presidential power is no license to commit crimes, despite Trump’s claims and those of his legal team in the Trump v. Vance case that he could kill someone on Fifth Avenue with impunity. If the president does not have a license to commit crimes, then acting as chief of staff to the president in order to commit those same crimes is also not exonerating. Once all the technical details are stripped away, we are left with the very simple principle that Justice John Roberts articulated in the Vance case: “In our system of government, as this Court has often stated, no one is above the law. That principle applies, of course, to a President.” It also applies to the president’s chief of staff.