Judges Scrutinize Former Trump White House Chief-of-Staff’s Bid to Move Georgia RICO Case to Federal Court

ATLANTA – A three-judge panel on Friday peppered an attorney for Mark Meadows on the former Trump White House chief of staff’s claims that the felony criminal charges he faces in Georgia should be removed to federal court because he was acting in his official government capacity.

Meadows, who was indicted alongside former President Donald Trump and 17 others in August, lost his original bid to seek a federal trial for state charges after testifying before U.S. District Judge Steve Jones.

Jones wasn’t compelled by Meadows' testimony that his interceding in the Georgia election was a responsibility of his federal office, remanding his case back to Fulton County Superior Court Judge Scott McAfee in September. 

Meadows immediately appealed the ruling, and on Friday it went before a three-judge panel that will decide his fate in the U.S. Court of Appeals for the 11th Circuit: Chief Judge William H. Pryor Jr., Judge Robin Rosenbaum, and Judge Nancy Abudu. 

Pryor — an appointee of President George W. Bush — is the only judge on the panel nominated by a Republican president. Rosenbaum was appointed by President Barack Obama and Abudu by President Joe Biden. 

Meadows was not present in the federal courtroom for the arguments Friday, which lasted a total of about 40 minutes. His attorney, George Terwilliger, opened the oral argument session by saying his client's alleged actions following the 2020 presidential election had a nexus to his official duties as chief of staff.

“We are here in this federal officer removal case,” Terwilliger, the former deputy U.S. attorney general during the George H.W. Bush administration, said, “because the state urged and the district court adopted – in a rather unprecedented, unorthodox and unworkable means – to answer the question that arises in all such removal cases of what is the state prosecution for?”

The charges alleged by the state, Terwilliger argued, are for acts connected to Meadows’ duties. 

But the appellate panel challenged Terwilliger’s claims with their own pointed questions.

“The problem here is, according to him it seems like everything was within his official duties, and that just cannot be right,” Rosenbaum said. “How do you answer that?”

Donald Wakeford, appearing for the Fulton County district attorney’s office, also faced pointed questions about the potential “chilling effect” of state and local prosecutors charging federal officers with crimes after leaving office.

Pryor also questioned Terwilliger on the question of whether a former officer is eligible for removal, given the language of the statute appears targeted to a currently serving officer.

“It’s not evident to me how this text can be read two ways,” he said. 

Pryor asked Wakeford whether his interpretation of the law would mean “federal officials in an administration that might be unpopular in certain jurisdictions could then be immediately subject to prosecution in those jurisdictions after they leave office?”

“Doesn't that put us really in an untenable situation?” Pryor asked Wakeford.

“Not an untenable one,” Wakeford said, adding that the issue is “certainly something that this court should be aware of.”

Wakeford argued a “plain text” interpretation of the law, that would prevent Meadows from seeking removal as a former officer, in addition to arguing that his conduct was outside of his official purview. 

“There is no federal authority to protect here,” he said. 

Pryor also questioned Wakeford on the point that – despite the plain text of the law – “every court for 140 years has not categorically excluded former officers.”

In a brief rebuttal period following Wakeford’s arguments, Terwilliger told the judges it would have affected his actions as a Justice Department official if he believed he could be subject to state prosecution after leaving office. 

“My decision making would have been really different if I knew the moment I stepped down I could be charged in a state court,” Terwilliger said. 

Meadows’ attorney concluded on the point that Meadow’s plausible defense, one of federal immunity under the Supremacy Clause, ought to be one made in federal, rather than state court. 

“Those are federal questions that need to be resolved in federal court,” he said. 

The panel is expected to issue a decision in the coming months.

Caren Morrison, a law professor at Georgia State University and former federal prosecutor, said the judges seemed in agreement that Meadows’ contention that anything he did as chief of staff qualified as an official act was unconvincing. 

“I don’t think that they indicated they had any basis to overturn Judge Jones’ decision, at least based on the merits that Meadows had taken these actions under the scope of his federal duties,” Morrison, who attended the hearing, said.

What’s more, Morrison noted, the question of whether the statute applies to former officers does not need to be addressed to uphold Jones’ decision. But if the circuit court does touch it, it creates a larger question for an appeal to the U.S. Supreme Court to tackle. 

“I don’t think the Supreme Court will bother reviewing the decision if it is just about Meadows himself,” she said, adding that “if the appellate court decides on the issue of whether this applies to former federal officers or not, it opens a larger question.”

Other legal experts agreed Friday's hearing did not bode well for Meadows’ efforts to remove his case to federal court.

“Meadows is toast,” Georgia State law professor Anthony Michael Kreis posted on X. “Pryor was very skeptical. Other judges too. Body language. Questions. It’ll be a hard loss.”

The law in question in the case is the federal office removal statute, a Reconstruction-era effort designed to ensure a fair trial for federal officers being prosecuted with potentially political intentions in local, ex-Confederate, jurisdictions following the U.S. Civil War. 

Section 1442 – a portion of U.S. Code governing the federal judicial system – says civil or criminal cases brought in state court against federal officers “for or relating to any act under color of such office” can be removed to federal court. 

At issue is whether the alleged criminal acts committed by Meadows and others are considered “official” duties of their office.

The Atlanta-based 11th Circuit, ahead of the hearing, requested Meadows and the state file briefs in response to whether Section 1442 applies to former federal officers. District Attorney Fani Willis’ brief argued that the “plain language” of the statute does not permit federal removal, while Meadows’ attorneys argued that so long as the alleged acts were committed “at the time” Meadows was a federal officer, that statute can be applied. 

Several other co-defendants in the Fulton County indictment have also tried their hand at using Section 1442 to move their cases, all failed, and all have also appealed to the 11th Circuit, though those hearings have yet to be scheduled. They include ex-Trump DOJ official Jeffrey Clark, and ‘fake’ electors David Shafer, Cathy Latham and Shawn Still. 

An attorney for Clark, Harry MacDougald, was present at Friday’s hearing. He declined to comment.

Trump had considered making his own pitch to move his case to federal court but his lawyer later opted to fight the Georgia charges before McAfee in state court.

McAfee granted Meadows’s request for an extension of various motion and discovery deadlines in state court until February, giving the former top Trump aide a little more than two months following Friday’s hearing to file substantive pre-trial motions. His attorneys, in a letter to the 11th Circuit, asked the judges to consider that factor in reaching a decision quickly.