Mark Meadows Is Trying to Move His Case out of Georgia Court. He Won’t Get Off That Easy.

On Thursday, Donald Trump will be arraigned in Fulton County, Georgia, on charges of racketeering, among others. Despite a Friday deadline to turn himself in to local authorities, Trump’s former chief of staff Mark Meadows was still trying to avoid that same fate this week. Here’s why his efforts to not face the music in Fulton County should ultimately fail.

On Tuesday, Meadows filed a motion in federal court in Atlanta to dismiss himself from the prosecution by Fulton County District Attorney Fani Willis. With it, Meadows asked not to have to turn himself in to federal authorities. Meadows’ immunity claim is a precursor to the one Trump is sure to be making before long. This effort is also likely to fail.

Meadows’ argument turns on whether the overt acts he is charged with in the indictment’s alleged conspiracy were part of his official duties as chief of staff. It’s safe to say he won’t be producing a job description that includes trying to help the boss overturn his 2020 electoral defeat among his official duties.

Reports are that Meadows has cooperated, at least partially, with special counsel Jack Smith. Yet if he did so under an immunity grant, he obtained no “global agreement” to deal with potential state prosecutors’ charges, as would be typical.

Indeed, there’s some desperation showing in Meadows’ emergency motion Tuesday to have a federal judge intrude on ordinary state procedures. Meadows asked that the court order Fulton County authorities to refrain from arresting him if he chooses not to voluntarily appear for processing.

Earlier this month, Meadows “removed” the Fulton County case against him to federal court. Former federal officers may do so when a state indicts them for actions that were within their official duties and they have a “colorable” defense under federal law. Meadows has now asserted federal immunity as such a defense. Willis will oppose Meadows’ claim to stay in federal court.

Here’s where it gets interesting. There are two different legal standards for the same issue, one for whether the case remains in federal court and the other for whether the federal defense may be raised at trial. As to the first, the standard is generous; it does not require that the former federal official have a meritorious federal defense, only that it be “plausible.”

In other words, Meadows’ claim for keeping his case in federal court has an easier path to success than his claim that the defense is legally sound on the merits. Staying in federal court matters because Meadows or any defendant in Atlanta could land a more favorable jury pool. Moving the case would also delay the prosecution and divide the prosecution between two venues.

Those same advantages are exactly why former acting Assistant Attorney General Jeffrey B. Clark has also removed his case, along with Georgia “fake elector” David Shafer. (Read Joyce Vance for more on the infirmities of the Clark effort.) Trump will likewise file for removal and has until Sept. 13 to do so. He will squeeze every last day of delay out of the 30 days allowed.

As to Meadows’ removal, U.S. District Judge Steve Jones, appointed to the bench in 2011 by President Barack Obama, has set Aug. 28 for an evidentiary hearing. That early date is the sign of a judge who recognizes the need for speed in these cases.

Now that Meadows has sought to dismiss the prosecution based on his purported immunity, he has shone a light on its frailties. It could trip on either step of the two-part inquiry under federal law:

A court must answer “yes” to both parts for the federal official to be immune.

Significantly, last year, in Thompson v. Trump, D.C. federal court Judge Amit Mehta rejected Trump’s motion to dismiss, on the grounds that he was acting within his official duties, a civil suit against him for conspiring to overturn the election.

In Meadows’ brief seeking dismissal, he cites these seven actions attributed to him in the Fulton County grand jury indictment:

At the Nov. 20 meeting with Michigan legislators, according to the House Jan. 6 committee report, Trump encouraged them to overturn the Michigan vote based upon a “litany” of his false claims of ballot fraud. They immediately rebuffed Trump’s entreaty. Biden won Michigan by more than 150,000 votes.

Notably, Meadows’ motion does not assert that Meadows joined that meeting without knowledge of Trump’s plan to try to overturn the 2020 election. That omission is significant because Meadows has the initial burden of proving that he was acting within the scope of his official duties; if he knew the meeting’s purpose, as seems probable, any Meadows defense that he was there simply at the president’s request, without seeking to aid the president’s scheme, would be a hard sell. In any event, his state of knowledge will likely be a subject of a future evidentiary hearing.

For now, the point is that after that meeting, there can be no question that the subsequent actions were made with knowledge of the scheme.

If Meadows did not seek legal advice from White House counsel Pat Cipollone as to whether to continue to follow the president’s directions by participating in the subsequent acts, Meadows failed in his responsibility to avoid involving himself in a plot outside the scope of his official duties.

Meadows could not be performing the responsibilities of his office in knowingly following the directions of a president who was acting beyond his legal rights and duties.

Meadows is alleged to have actively engaged in multiple unlawful acts in Georgia that would not qualify for immunity. For example, in the infamous Jan. 2, 2021, recorded phone call with Raffensperger, it seems clear that Meadows “did more than what was necessary and proper” to fulfill his responsibilities. In that call, Meadows had this exchange with Ryan Germany, the general counsel to the secretary of state:

For her part, Willis has subpoenaed Raffensperger to testify during the crucial Aug. 28 evidentiary hearing, which shows just how crucially she views this episode in proving that Meadows was not acting as part of his official duties.

It’s always possible that the Georgia federal court will find that Meadows acted properly within one or more of the seven acts alleged. But as to the majority of them, he was not within the “outer perimeter” of his official duties and did more than was necessary and proper.

Unless Meadows reaches some cooperative arrangement with Willis, the likelihood is high that he will be a defendant in a future trial in Georgia state court.