Judges dubious of Mark Meadows’ bid to avoid facing charges in Georgia state court

A federal appeals court panel took a skeptical stance Friday toward an effort by former White House chief of staff Mark Meadows to have a federal court take and potentially dismiss the state charges pending against him for allegedly trying to tamper with the 2020 presidential election results in Georgia.

All three members of the 11th Circuit Court of Appeals panel raised sharp questions about Meadows’ argument that his role as Donald Trump’s chief of staff requires federal courts — rather than the courts in Fulton County, Ga. — to oversee the case in which he, Trump and 17 others were charged in an alleged racketeering conspiracy.

During a 50-minute oral argument session in Atlanta, the appeals judges expressed particular skepticism about Meadows’ effort to claim that his work to help Trump secure a second term even after states had certified his defeat — conduct at the heart of the charges against him in Georgia — were part of his official chief-of-staff duties.

“That just cannot be right,” said Judge Robin Rosenbaum, an appointee of President Barack Obama. She specifically cited “electioneering on behalf of a specific political candidate” and “an alleged effort to unlawfully change the outcome of the election” as examples of what would fall outside a government official’s duties.

The scope of Meadows’ formal duties is important because, under federal law, U.S. officials have the right to transfer a case from state court into federal court if the case is based on their official acts. That process, known as “removal,” also could result in dismissal of the charges if a federal judge agrees that Meadows’ actions were a legitimate exercise of his official responsibilities.

Judge Nancy Abudu, an appointee of President Joe Biden, noted that a different federal law, known as the Hatch Act, prohibits government officials from engaging in political activity in their official capacity.

In a particularly bad sign for Meadows, the staunchly conservative chief judge of the 11th Circuit Court of Appeals, William Pryor Jr., signaled he doesn’t believe the removal procedure applies to former officials at all. He said it would have been reasonable for Congress to prefer removal only for current officials because state charges against former officials don’t interfere with “ongoing operations of the federal government.”

“That heightened concern might not exist where you have a former officer,” said Pryor, an appointee of President George W. Bush. “We normally have a presumption that the separate sovereign of a state and its courts are equally faithful to the Constitution of the law and can be trusted.”

Pryor said the charges against Meadows don’t appear to have any bearing on the operation of the Biden administration.

While generally skeptical of Meadows’ reading of the law, all three judges on the panel mused about whether allowing state prosecutions of former federal officials would have a “chilling effect” on current federal officials.

Meadows’ attorney George Terwilliger III, who served as deputy attorney general and acting attorney general under President George H.W. Bush, seized on the opening to say he’d have done his federal job differently if he knew he could be prosecuted in state court 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 declared.

Donald Wakeford, a prosecutor in the office of Fulton County District Attorney Fani Willis, contended that chilling sitting officials from committing crimes would be a good thing. Without mentioning Trump by name, the prosecutor noted that such a chill was embraced by U.S. District Judge Tanya Chutkan in a recent ruling dismissing a challenge to Trump’s federal prosecution for his actions related to the 2020 election. Wakeford also said there’s been no litany of examples of punitive prosecutions against former federal officials.

“I would refer to the great weight of history to demonstrate that doesn’t happen or hasn’t happened. These are exceptional circumstances,” Wakeford said.

With many conservative judges and attorneys regularly championing the use of “textualism” — or a strict adherence to the text— as the best way of interpreting laws, Meadows’ case put Terwilliger in the awkward position of trying to persuade the judges to read language into the removal statute that would sweep in former officers despite the fact they aren’t mentioned in the relevant part of the law.

Terwilliger did that by warning of grave consequences if the courts rule that state prosecutions of former federal officials are permitted. That “would lead to chaos,” he insisted.

But Pryor remained dubious about Terwilliger’s framing of what Congress was trying to do in passing the statute.

“The purpose has to be derived from the text, and we can't smuggle in the answer to purpose before we look at the text,” the judge said.

Rosenbaum also said the court might be exceeding its proper role by divining a protection for former federal officers.

“Isn’t that something that Congress should address?” she asked.

“If there was a question about it, I think Congress would address it and address it very quickly,” Terwilliger replied, “but for 130 years, there's been no question about it.”

In September, a federal district judge turned down Meadows’ bid to move his prosecution to federal court. The panel of the 11th Circuit is now weighing Meadows’ appeal of that ruling. If Meadows is ultimately allowed to transfer his prosecution to federal court, his lawyers have signaled they will quickly file a motion to throw the case out altogether for interfering with federal prerogatives.

Although Trump is charged alongside Meadows in the state case, the former president passed up his chance to try to move his prosecution to federal court.