A quick and dirty overview of how the federal officer removal statute, as interpreted by the Court, maps onto the latest indictment of former President Trump on state criminal charges in Georgia
Can you explain why Meadows has “supremacy clause immunity?” Wouldn’t there have to be a federal statute that says it is ok to plot to overthrow the government? If the issue is the broader Federal RICO law, how does that in itself grant “immunity?” Can Willis end run that by simply taking him out of the RICO part of the case and charge him just with conspiracy under state law?
My take on these very good questions, as a civil trial lawyer who learned his fed courts in part from the professor at Texas Law whose name graces Prof. Vladeck's endowed chair:
Primary sources rule, and Meadows' brief supporting his motion to dismiss addresses this on pp. 11-23. The headings for those sections summarize his arguments thusly: "The charged conduct, carried out while Mr. Meadows served as Chief of Staff to the President of the United States, has [the required] 'nexus with furthering federal policy, [and] Mr. Meadows's conduct 'can reasonably be characterized as complying with the full range of federal law.'"
Federal RICO has nothing to do with this. The charges against Meadows and Trump and their codefendants are already under state law, the Georgia RICO statute mostly modeled on the federal one.
I don't see any way that DA Ellis could have avoided a removal in this case. Trump would've, if Meadows hadn't, and so would Clark. Even if DA Ellis had only charged Trump, he'd have removed, and although Meadows and Clark may have better arguments overall, Trump would argue that regardless of what his interests were as disappointed candidate Trump, as POTUS Trump he & Meadows were just trying to protect and vindicate the federally secured rights to vote, and have votes counted, per the civil rights laws, entitling them both to federal-officer removal and to a federal-agent governmental immunity defense. "Can you believe this? They're charging me in DC with breaking the civil rights laws Meadows & I were on the phone to warn those Georgia state officials not to violate!" It's ... a colorable argument.
And the remand decision will be based on the record plus the fact-findings made during the upcoming evidentiary hearing — only as to Meadows' grounds, no one else's — as of the filing of the removal notice. She can't now try to plead it into un-removable status by, for instance, dropping charges or defendants.
"But perhaps the real takeaway here is that removal is largely a sideshow."
A sideshow it may be, but as a delaying tactic, it's another opportunity for indictees to slow-walk legal proceedings against them. Let's see how expeditiously the federal district judge hearing the case, Steve Jones, handles the motion, no doubt the first of several to be filed, including one by tRump himself. Also, if the judge rules against the remove motion, is it appealable?
Judge Jones made his threshold determination per 28 U.S.C. § 1455(b)(5) — in which he "examine[d] the notice promptly” to determine if summary remand ought to be granted based on a clear lack of jurisdiction from the face of the notice and any exhibits annexed thereto — in an 11-page order filed on August 16th. This was the very next day after Meadows removed the case on August 15th — which in turn was as soon as Meadows' lawyers could get a copy of the state-court file to attach to their removal notice after the Indictment was announced and filed on the evening of August 14th.
Judge Jones' order set an evidentiary hearing for Monday, August 28, and invited DA Ellis to file her briefing as to her position on the removal — no motion for remand having yet then been made — on Wednesday, August 23 (today), with a 25-page limit.
So this is moving lickety-split, much more quickly than the removal and remand of the Manhattan/SDNY removal and remand (indictment on Apr 4, removal on May 4, evidentiary hearing on June 27, remand order on July 19). Link: https://scholar.google.com/scholar_case?case=649380991942829882
And yes, per 28 U.S.C. § 1447(d), "an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of [Title 28 of the U.S. Code] shall be reviewable by appeal or otherwise" — which is an oddity to civil lawyers like me, civil remand orders generally being unreviewable. Trump is already in the process of appealing to the Second Circuit the Southern District of New York order remanding Alvin Bragg's indictment back to Manhattan Superior Court.
Thank you for a comprehensive review of the "remove" motion as it pertains to the ATL defendants, and noting that if Judge Jones' decision finds against the movant, it can be appealed per tRump's action in NY.
This is marvelous, and I thank you for writing and posting it, Prof. Vladeck.
Your footnote 1 catches my eye. Certainly the whole case as to all defendants stays in federal court for a section 1442(a)(1) federal-officer removal in a multidefendant civil case:
===begin quote===
This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The Congressional policy permitting federal officer removal could easily be frustrated by simply joining non-federal defendants unwilling to remove if consent of co-defendant(s) were required. Thus in Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960), the Second circuit ruled that "[t]he `general government' must be able to assure each of its officers that a federal forum will be available if he wishes it, whether others sued with him wish it or no." Likewise, in Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965), the Fifth circuit held "it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court." In Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981), the Ninth circuit reasoned that "[s]ince the federal officer is the only one entitled to remove under § 1442, he alone can remove without other defendants joining in the petition, and the entire case is removed to the federal court." In City of Aurora v. Erwin, this court noted the importance to the United States and the absolute nature of federal officer removal jurisdiction, quoting the Supreme Court that exercise of such jurisdiction "`should not be frustrated by a narrow, grudging interpretation.'" 706 F.2d 295, 296 (10th Cir.1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the foregoing, we hold that G.E. properly removed the case to federal court without the consent of co-defendants.
I've found nothing on this point from a section 1442(a)(1) removal of a state criminal case, and if there is no precedent, I suppose nothing is self-evident. But it's the very same statute. Why would there be a different standard for criminal and civil cases removable under the same statute? And aren't the policy arguments that support this rule for civil removals equally, or even more, urgent in the context of criminal removals?
It seems to me that Meadows has the better of this argument, and that his is the only officer status, "acting under" analysis, or federal defense that counts.
Is there a substantial silver lining for DA Ellis in federal court by virtue of the fact that she'd gain nationwide subpoena powers, rather than having to go through the interstate compact to compel testimony and evidence from out-of-state witnesses?
Did you notice that Meadows let no time run off the clock, but filed his removal notice on the morning after the indictment was announced? By contrast, Trump let the full 30 days go by before removing Bragg's indictment. A stall-opportunity was wasted. And Meadows' merits motion to dismiss is already on file too. His speaking removal notice (first one of those I've seen) took care to avoid waiving anything, as Trump's notice was held to have done in the SDNY remand. None of which to say Meadows has flipped, or will flip. But they're not acting in sync.
I desperately hope that the GA case stays in federal court, if only to deprive Trump of the circus opportunities TV in the courtrooms creates. In my civil practice, I've found courtrooms to be Kryptonite to a lot of the normal con-man bullsh!t, and of course he can't treat a judge the way he's treated debate moderators, lest he end up in shackles and a gag. But TV in the courtroom would give him a renewable con-man powerup, and tilt the playing field to the reality TV star's benefit.
I'm looking forward to your continuing thoughts on these fed-courts brain-twisters.
The Grace v Miami thing has gotten very little coverage and it seems like it’s important? I guess the VRA is truly dead when the racist voter maps are considered the normal ones?
Can you explain why Meadows has “supremacy clause immunity?” Wouldn’t there have to be a federal statute that says it is ok to plot to overthrow the government? If the issue is the broader Federal RICO law, how does that in itself grant “immunity?” Can Willis end run that by simply taking him out of the RICO part of the case and charge him just with conspiracy under state law?
My take on these very good questions, as a civil trial lawyer who learned his fed courts in part from the professor at Texas Law whose name graces Prof. Vladeck's endowed chair:
Primary sources rule, and Meadows' brief supporting his motion to dismiss addresses this on pp. 11-23. The headings for those sections summarize his arguments thusly: "The charged conduct, carried out while Mr. Meadows served as Chief of Staff to the President of the United States, has [the required] 'nexus with furthering federal policy, [and] Mr. Meadows's conduct 'can reasonably be characterized as complying with the full range of federal law.'"
Link: https://www.beldar.org/2023/GA/2023-08-19_Doc016.1_Meadows_Corrctd_Brief_MtoDismiss.pdf
Federal RICO has nothing to do with this. The charges against Meadows and Trump and their codefendants are already under state law, the Georgia RICO statute mostly modeled on the federal one.
I don't see any way that DA Ellis could have avoided a removal in this case. Trump would've, if Meadows hadn't, and so would Clark. Even if DA Ellis had only charged Trump, he'd have removed, and although Meadows and Clark may have better arguments overall, Trump would argue that regardless of what his interests were as disappointed candidate Trump, as POTUS Trump he & Meadows were just trying to protect and vindicate the federally secured rights to vote, and have votes counted, per the civil rights laws, entitling them both to federal-officer removal and to a federal-agent governmental immunity defense. "Can you believe this? They're charging me in DC with breaking the civil rights laws Meadows & I were on the phone to warn those Georgia state officials not to violate!" It's ... a colorable argument.
And the remand decision will be based on the record plus the fact-findings made during the upcoming evidentiary hearing — only as to Meadows' grounds, no one else's — as of the filing of the removal notice. She can't now try to plead it into un-removable status by, for instance, dropping charges or defendants.
"But perhaps the real takeaway here is that removal is largely a sideshow."
A sideshow it may be, but as a delaying tactic, it's another opportunity for indictees to slow-walk legal proceedings against them. Let's see how expeditiously the federal district judge hearing the case, Steve Jones, handles the motion, no doubt the first of several to be filed, including one by tRump himself. Also, if the judge rules against the remove motion, is it appealable?
Judge Jones made his threshold determination per 28 U.S.C. § 1455(b)(5) — in which he "examine[d] the notice promptly” to determine if summary remand ought to be granted based on a clear lack of jurisdiction from the face of the notice and any exhibits annexed thereto — in an 11-page order filed on August 16th. This was the very next day after Meadows removed the case on August 15th — which in turn was as soon as Meadows' lawyers could get a copy of the state-court file to attach to their removal notice after the Indictment was announced and filed on the evening of August 14th.
Judge Jones' order set an evidentiary hearing for Monday, August 28, and invited DA Ellis to file her briefing as to her position on the removal — no motion for remand having yet then been made — on Wednesday, August 23 (today), with a 25-page limit.
Link: https://www.beldar.org/2023/GA/2023-08-16_DOC006_Order_denying_summary_remand_setting_Aug28_hearing.pdf
So this is moving lickety-split, much more quickly than the removal and remand of the Manhattan/SDNY removal and remand (indictment on Apr 4, removal on May 4, evidentiary hearing on June 27, remand order on July 19). Link: https://scholar.google.com/scholar_case?case=649380991942829882
And yes, per 28 U.S.C. § 1447(d), "an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of [Title 28 of the U.S. Code] shall be reviewable by appeal or otherwise" — which is an oddity to civil lawyers like me, civil remand orders generally being unreviewable. Trump is already in the process of appealing to the Second Circuit the Southern District of New York order remanding Alvin Bragg's indictment back to Manhattan Superior Court.
Thank you for a comprehensive review of the "remove" motion as it pertains to the ATL defendants, and noting that if Judge Jones' decision finds against the movant, it can be appealed per tRump's action in NY.
This is marvelous, and I thank you for writing and posting it, Prof. Vladeck.
Your footnote 1 catches my eye. Certainly the whole case as to all defendants stays in federal court for a section 1442(a)(1) federal-officer removal in a multidefendant civil case:
===begin quote===
This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The Congressional policy permitting federal officer removal could easily be frustrated by simply joining non-federal defendants unwilling to remove if consent of co-defendant(s) were required. Thus in Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960), the Second circuit ruled that "[t]he `general government' must be able to assure each of its officers that a federal forum will be available if he wishes it, whether others sued with him wish it or no." Likewise, in Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965), the Fifth circuit held "it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court." In Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981), the Ninth circuit reasoned that "[s]ince the federal officer is the only one entitled to remove under § 1442, he alone can remove without other defendants joining in the petition, and the entire case is removed to the federal court." In City of Aurora v. Erwin, this court noted the importance to the United States and the absolute nature of federal officer removal jurisdiction, quoting the Supreme Court that exercise of such jurisdiction "`should not be frustrated by a narrow, grudging interpretation.'" 706 F.2d 295, 296 (10th Cir.1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the foregoing, we hold that G.E. properly removed the case to federal court without the consent of co-defendants.
===end quote===
Akin v. Ashland Chem. Co., 156 F.3d 1030 (10th Cir. 1998). Link: https://scholar.google.com/scholar_case?case=14937677239245682991
I've found nothing on this point from a section 1442(a)(1) removal of a state criminal case, and if there is no precedent, I suppose nothing is self-evident. But it's the very same statute. Why would there be a different standard for criminal and civil cases removable under the same statute? And aren't the policy arguments that support this rule for civil removals equally, or even more, urgent in the context of criminal removals?
It seems to me that Meadows has the better of this argument, and that his is the only officer status, "acting under" analysis, or federal defense that counts.
Is there a substantial silver lining for DA Ellis in federal court by virtue of the fact that she'd gain nationwide subpoena powers, rather than having to go through the interstate compact to compel testimony and evidence from out-of-state witnesses?
Did you notice that Meadows let no time run off the clock, but filed his removal notice on the morning after the indictment was announced? By contrast, Trump let the full 30 days go by before removing Bragg's indictment. A stall-opportunity was wasted. And Meadows' merits motion to dismiss is already on file too. His speaking removal notice (first one of those I've seen) took care to avoid waiving anything, as Trump's notice was held to have done in the SDNY remand. None of which to say Meadows has flipped, or will flip. But they're not acting in sync.
I desperately hope that the GA case stays in federal court, if only to deprive Trump of the circus opportunities TV in the courtrooms creates. In my civil practice, I've found courtrooms to be Kryptonite to a lot of the normal con-man bullsh!t, and of course he can't treat a judge the way he's treated debate moderators, lest he end up in shackles and a gag. But TV in the courtroom would give him a renewable con-man powerup, and tilt the playing field to the reality TV star's benefit.
I'm looking forward to your continuing thoughts on these fed-courts brain-twisters.
If it a sideshow, why do it?
Delay, delay,. delay
The Grace v Miami thing has gotten very little coverage and it seems like it’s important? I guess the VRA is truly dead when the racist voter maps are considered the normal ones?
Love your work! Thank you!