Updated at 12:44 p.m.
A panel of federal appeals court judges heard arguments on whether charges against Trump White House chief of staff Mark Meadows in a sprawling Georgia election case should be moved but expressed skepticism Friday that the relevant statute applies to former officials.
Meadows, who was indicted alongside former President Donald Trump and 17 others on charges they schemed to illegally keep the Republican nominee in power despite losing the 2020 election, is trying to get his case out of state court. He argues that he is covered under the Federal Officer Removal Statute, which allows federal officials to move legal cases against them to federal court when they are related to their official duties. U.S. District Judge Steve Jones ruled against him in September, finding that Meadows’ actions were taken on behalf of the Trump campaign.
Meadows appealed the ruling to the 11th U.S. Circuit Court of Appeals, and a panel of three judges held oral arguments on the case Friday.
Chief Circuit Judge William Pryor seemed doubtful that the removal statute applies to former officers who are no longer in their official roles. The appointee of President George W. Bush said it makes sense that Congress would write such a law for current federal officers who are still involved in running the government but the case of a former officer “doesn’t involve the ongoing operations of the government.”
Circuit Judge Robin Rosenbaum, an appointee of President Barack Obama, asked prosecutor Donald Wakeford about a possible chilling effect, giving hypothetical scenarios where federal officials who do things that may not be popular as part of their official duties could change their behavior out of fear of a state prosecution that couldn’t be moved to federal court once they leave office.
Wakeford said those hypotheticals involve an “abuse of prosecutorial discretion.” He said the statute must be taken as written and pointed out that state courts are capable of applying the law.
Meadows attorney George Terwilliger, who served as deputy attorney general under President George H.W. Bush, seized on the idea of a chilling effect and said his own “decision making would have been really different” if he had known he could be prosecuted in state court without the possibility of moving a case to federal court the moment he left office.
Pryor seemed dubious, asking if Terwilliger actually would have changed his behavior.
Terwilliger also argued that the charges against Meadows stem from “acts taken in the West Wing of the White House by the highest appointed” official in the White House, arguing that he was performing his official duties. Meadows’ lawyers have argued that Jones was wrong both in requiring Meadows to prove that “a heavy majority” of the actions for which he is charged related to his role as chief of staff and in finding that “political activity” was outside the scope of his duties.
Circuit Judge Nancy Abudu, appointed by President Joe Biden, seemed concerned that, during his testimony in the lower court, Meadows didn’t appear to provide any “outer limits” to the scope of his duties. She asked Terwilliger how he reconciles that with the Hatch Act, which restricts partisan political activity by federal employees.
Terwilliger said it’s not clear the Hatch Act applies to the White House chief of staff and that, for the purposes of moving his case to federal court, Meadows doesn’t have to explain the outer limits of his office, that he only has to show his actions related to his official duties.
Prosecutors have repeatedly said Meadows has failed to show any connection between this work and his official duties. Wakeford said the removal statute is meant to protect federal authority.
“I think, ultimately, this is a case where, once again, there is no federal authority to protect,” he said.
The panel did not immediately rule on the appeal.
Four people have already pleaded guilty in the Georgia election case after reaching deals with prosecutors. The remaining 15, including Trump, Meadows and former New York Mayor Rudy Giuliani, have pleaded not guilty.
Meadows is one of five defendants seeking to move his case to federal court. Such a move would mean drawing from a jury pool that includes a broader area than just overwhelmingly Democratic Fulton County. It would also mean a trial that would not be photographed or televised, as cameras are not allowed inside. But it would not open the door for Trump, if he’s reelected in 2024, or another president to pardon anyone because any convictions would still happen under state law.
