Georgia Defendants Unleash Volley Of Bonkers Motions In Election Interference Indictment

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(Photo by Alex Wong/Getty Images)

On Tuesday, August 15, less than 24 hours after being indicted in Georgia for his role in the plot to steal the state’s 16 presidential electors in 2020, Mark Meadows filed notice removing his state criminal charges to federal court, arguing that he was simply fulfilling his duty as White House chief of staff. Later in the week, Meadows followed up with a motion to dismiss under the Supremacy Clause, as well as a notice to the court that he did not agree with a third-party request to postpone the scheduled August 28 hearing on his removal motion.

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The notice referred to “counsel for another defendant named in the State of Georgia’s Indictment [who] informed the Court by email that he intends to file a forthcoming notice of removal.” Since only two other defendants were federal employees in 2020 and 2021, we at ATL speculated that the unnamed defendant had to be former DOJ attorney Jeff Clark — presumably Meadows would go along with a request from Trump himself, and Clark seems like just the kind of out-of-the-box thinker who would email a federal judge demanding that someone else’s case be continued.

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In fact, it was even weirder than that! Because David Shafer, the former Georgia GOP chair who coordinated the fake electors scheme in concert with the Trump campaign, filed his own notice of removal claiming federal jurisdiction “as a matter of right.”

The State Indictment (the “Indictment”), attached as Exhibit A, charges Mr. Shafer with conduct that stems directly from his service as a Presidential Elector nominee acting under the authority of the Constitution and the Electoral Count Act (“ECA”),2 3 U.S.C. § 1 et seq., and at the direction of the President and other federal officers. Mr. Shafer has numerous federal defenses, including official immunity, federal preemption, supremacy clause immunity, defenses under the Due Process Clause, and First Amendment defenses.

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Admittedly, this had not occurred to us! Although, if we were to quibble, we’d note that Shafer was not, in fact, an elector under the Electoral Count Act. Also he was not acting at the direction of the President, but rather in cahoots with the Trump campaign.

In the meantime, Jeff Clark did, indeed, file his notice of removal along with an “Emergency Motion to Confirm Applicability of Automatic Stay Under 28 U.S.C. § 1446(D) or the Triggering of the Stay in 28 U.S.C. § 1455(B)(5) or Both — or in the Alternative for an Administrative Stay.” And as you might guess, that motion is also … creative!

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Clark has a fairly strong argument for removal, since the conduct he’s charged with was undertaken in his capacity as a Justice Department official. But criminal removal is governed by § 1445(b)(3), which explicitly does not halt state proceedings while the motion to remove is being considered. So Clark instead argues that “the removed case is a civil-criminal hybrid action,” and thus merits the automatic stay of civil proceedings under § 1446(d).

How could a criminal indictment possibly be civil?

Well! The special purpose grand jury which investigated the election interference was not allowed by law to issue a criminal indictment. Instead, it issued a report which was then taken to the regular grand jury, which then issued an indictment as set out in Georgia law. And even though the presiding judge said the SPGJ was definitely a criminal body, Clark says it was both civil and ultra vires, so ipso facto he can remove a criminal proceeding to federal court under the civil removal statute.

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It makes complete sense, really. And if it doesn’t, note that Clark has also argued that his DC disbarment proceedings are “hybrid civil-criminal proceedings” worthy of federal removal.

Clark notes that the deadline for surrender is this Friday, August 25, and observes that Mark Meadows’s removal petition will still force him to be arraigned.

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“Since Mr. Clark’s removal is filed six days after Mr. Meadows’ removal, Mr. Clark’s timeline is even more compressed,” he writes, demanding that the court issue a TRO or administrative stay “on or before 5 pm Tuesday, August 22, 2023,” so that he will “not need to be put the choice of making rushed travel arrangements to fly into Atlanta or instead risking being labeled a fugitive.”

(Which kinda sounds like a you problem.)

Thus far, Judge Steven Jones, who is assigned to all three cases, has declined to leap to Clark’s aid. Instead, he ordered the Fulton County DA to respond by 3 p.m. tomorrow, August 23, noting that no reply will be permitted.

Not to be outdone, Meadows has now asked the court to allow for immediate removal of his case because he asked DA Willis to postpone his surrender date and she refused, writing:

I am not granting any extensions. I gave 2 weeks for people to surrender themselves to the court. Your client is no different than any other criminal defendant in this jurisdiction. The two weeks was a tremendous courtesy. At 12:30 pm on Friday I shall file warrants in the system. My team has availability to meet to discuss reasonable consent bonds Wednesday and Thursday.

And so Meadows would like Judge Jones to dispense with the hearing altogether and allow the case to be removed immediately.

“The Court should promptly grant relief to prevent Mr. Meadows from irreparably losing his right under federal law to be free from state arrest and to protect this Court’s ability consider Mr. Meadows’s Notice of Removal,” he writes, adding that he would also accept an order from Judge Jones enjoining state authorities from arresting him before the federal removal hearing.

Well, it’s an argument. And since Clark and Shafer have already taken the maximally crazy positions, Meadows’s motion looks practically sane by comparison.

State of Georgia v. Meadows [Docket via Court Listener]
State of Georgia v. Clark [Docket via Court Listener]
State of Georgia v. Shafer [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

Topics

Courts, Donald Trump, Election Law, Georgia, Mark Meadows