Mark Meadows speaks with reporters outside the White House, Monday, Oct. 26, 2020, in Washington. (AP Photo/Patrick Semansky, File). Inset: Clarence Thomas (Drew Angerer/Getty Images).
Former Trump White House chief of staff Mark Meadows has asked the U.S. Supreme Court to move his Georgia racketeering (RICO) prosecution to federal court — a move that, if granted, would delay and upset the already-jeopardized case substantially further.
The effort to remove the prosecution from the Peach State court system is not, by any stretch, new. Meadows has repeatedly asked federal judges to give a federal court jurisdiction over his case. So far, at least, several federal judges have repeatedly declined to do so.
In his petition for writ of certiorari dated July 27, Meadows is logically making the case to the next, and last, highest court up the chain.
The docket in the high court’s case shows the petitioner was previously granted two key filing delays by Justice Clarence Thomas that have since afforded him an additional legal argument that might prove instrumental — should the court eventually rule in his favor.
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While the Meadows case has been pending since May, the Supreme Court’s July 1 ruling on presidential immunity looms large.
“That decision makes clear that federal immunity fully protects former officers, often requires difficult and fact-intensive judgment calls at the margins, and provides not just a substantive immunity but a use immunity that protects against the use of official acts to try to hold a current or former federal officer liable for unofficial acts,” Meadows’ attorney Paul Clement writes. “All of those sensitive disputes plainly belong in federal court.”
To hear Meadows tell it, the immunity decision could open the door for all of the president’s subordinates to enjoy certain legal presumptions, in terms of criminal defenses, as well.
“[A] White House Chief of Staff facing criminal charges based on actions relating to his work for the President of the United States should not be a close call — especially now that this Court has recognized that federal immunity impacts what evidence can be considered, not just what conduct can form the basis for liability.”
The basis of Meadows’ defense is the Supremacy Clause and boils down to the argument, expressed in the petition, that “former officers unquestionably retain immunity defenses for the official acts taken during their tenure.”
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Meadows previously argued, and lost, his case before the 11th Circuit Court of Appeals.
The heart of the opinion rejecting his removal effort was the notion that the federal removal statute “does not apply to former officers” of the United States “so Meadows, as a former chief of staff, is not a federal ‘officer’ within the meaning of the removal statute.”
Meadows rejects this understanding of the removal statute — arguing the federal law is premised on an asserted defense in order “to have the validity of the defense of official immunity tried in a federal court.”
“Denying former officers removal protection by focusing on officer status at the time the prosecutor or plaintiff decides to file suit, rather than when actions under color of federal office occurred, is unprecedented for a reason,” the petition reads. “It defies statutory text, context, and common sense.”
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In other words, Meadows says the time component envisioned by the 11th Circuit is inapposite.
“The Eleventh Circuit’s miserly and counterintuitive construction of the federal-officer removal statute is egregiously wrong, wholly unprecedented, and exceptionally dangerous,” the petition reads. “What matters is a federal officer’s status at the time of the conduct at issue, not her status at the time the prosecutor or plaintiff gets around to filing suit.”
This somewhat backward-looking application of the federal removal statute, Meadows argues, is undergirded by the presidential immunity given to the former president.
“It is, of course, blackletter law that immunity defenses turn on the nature of the challenged action, not the defendant’s status at the time of suit, and so continue to protect former officers once they leave office,” the petition goes on. “Indeed, this Court reiterated that just this past Term, engaging in an extensive analysis of what immunity ‘a former President [has] for actions taken during his Presidency.'”
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The 11th Circuit also, to a lesser degree, ruled against Meadows based on the merits of the indictment. A three-judge panel questioned out loud whether or not his actions subject to the microscope of Fulton County District Attorney Fani Willis could genuinely, or even plausibly, have been carried out under his official role or as official acts.
Notably, Meadows, after the judge overseeing the state case dismissed several counts , now only faces one extant criminal charge in Georgia — the overarching alleged RICO conspiracy.
Again, Meadows argues the appeals court got the law wrong. This time, he says, the 11th Circuit stands on the wrong side of a circuit split by using a “particularly demanding variant” of a test that forces a defendant to prove a “causal nexus” between their duties and the charged behavior.
Here, the appellate court was particularly unforgiving, arguing that Meadows needed to prove a White House chief of staff’s duties “extend … to an alleged conspiracy to overturn valid election results.”
The petition rubbishes this standard as something of a topsy-turvy inversion of the standard that was explicitly modified over a decade ago.
“But as at least six circuits have recognized, Congress abrogated the ‘causal-nexus’ test in 2011 when it amended the federal-officer removal statute to permit removal of suits not just ‘for,’ but also ‘relating to,’ any act under color of federal office,” the petition argues. “And even when that test held sway, this Court repeatedly made clear that it did not demand accepting all the state’s allegations as true or conducting a full-blown adjudication of the merits at the jurisdictional threshold. Yet that is exactly what the Eleventh Circuit did here.”
And, again, Meadows argues, the broad-based presidential immunity opinion underscores why the more liberal standard should be adopted.
“[T]he threat posed by prosecutions against federal officers for actions relating to their federal functions does not evaporate once they leave federal office,” the petition goes on. “Just as immunity protection for former officers is critical to ensuring that current and future officers are not deterred from enthusiastic service, so too is the promise of a federal forum in which to litigate that defense.”
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The post ‘Fully protects former officers’: Mark Meadows wants Supreme Court to upturn Georgia RICO case in light of Trump immunity opinion – and gets an assist from Clarence Thomas first appeared on Law & Crime .
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