By Tom Hals
Efforts by Donald Trump allies to move Georgia's criminal case charging the former U.S. president with trying to overturn an election to federal court is raising legal questions that could delay a trial, which may be a key part of their strategy.
On Aug. 28, Trump's former chief of staff, Mark Meadows, who was charged alongside the former president with trying to subvert the results of the 2020 election, will argue his case should be heard in federal court rather than in Fulton County Superior Court, where it was filed.
If Meadows succeeds, he would be tried before a broader jury pool that includes the Congressional district of conservative firebrand Marjorie Taylor Greene, rather than jurors solely from Fulton County, which voted for Joe Biden in 2020 by nearly a 3-1 margin.
Two other defendants, former Department of Justice official Jeffrey Clark and David Shafer, who was a Republican presidential elector nominee, have also filed papers citing a law known as the Federal Officer Removal Statute in a bid to transfer their cases.
Trump, the front-runner for the Republican presidential nomination, is likely to do so as well, legal experts said.
A spokesperson for the Fulton County district attorney declined to comment and attorneys for Meadows, Shafer and Trump did not respond to a request for comment.
The removal cases will be heard by a federal judge in the Northern District of Georgia and could tie up the case in appeals if denied, legal experts said.
"The request for removal is definitely going to delay this trial and be complicated and messy," said Eric Segall, a professor at Georgia State College of Law.
The removal question is just one of many that are likely to be litigated before a trial, adding to uncertainty about prosecutors' request for a trial date as soon as Oct. 23.
DELAY AS A TACTIC
Trump, who has a history of using delay as a legal tactic, is also trying to move upcoming criminal trials in New York and Washington to other courts. He is also defending a criminal indictment in Miami.
Fulton County District Attorney Fani Willis charged Trump and 18 others with racketeering in a scheme to overturn the 2020 presidential election in Georgia, which was won by President Joe Biden. No defendants have entered a plea in the Georgia case.
Willis accused Meadows of furthering a conspiracy by, among other things, joining Trump in urging Georgia's secretary of state to change vote totals.
The federal officer removal law protects people from state prosecution for carrying out official federal duties.
The statute requires a defendant to prove they were an officer of the United States or acting at an officer's direction, that the alleged acts were part of their official duties and that they have a federal legal defense.
Meadows argued in federal court papers filed last week that the acts described in the indictment fall squarely within the duties of a chief of staff: assisting the president by arranging meetings and making phone calls.
Prosecutors countered that Meadows was carrying out political activities - which U.S. government employees are barred from doing under a federal law known as the Hatch Act. Meadows in his court papers also said his political activity was protected speech under the U.S. Constitution.
"NOT RELATED" TO OFFICIAL ACTS
The removal issue has come up before in a Trump criminal case.
The former president failed to remove a case by Manhattan's district attorney that accused Trump of falsifying business records to cover up a sex scandal on the eve of the 2016 election.
U.S. District Judge Alvin Hellerstein in July found that "hush money paid to an adult film star is not related to a president's official acts" and sent the case back to state court. Trump has pleaded not guilty to the charges and appealed the ruling to the 2nd U.S. Circuit Court of Appeals.
Legal experts said the accused acts in the Georgia case are more plausibly related to official duties than the hush money payments in the New York case. If U.S. District Judge Steve Jones in Atlanta agrees, he would next examine if Meadows has a federal defense.
Meadows argued as a defense that he is immune under the Supremacy Clause of the Constitution, which is similar to the removal law. It says that if a person were carrying out duties placed on them by federal law, they cannot be prosecuted for committing a state crime.
"In other words, if you actually successfully remove the case, then it probably gets dismissed," said Josh Blackman, a law professor at the South Texas College of Law.
However, just because Meadows has a defense, that does not mean it would necessarily apply to the specific actions cited in the indictment.
Legal experts said Jones could allow the case to proceed in federal court and address immunity at a later hearing. If he determines immunity did not apply to the accused actions, the jury trial would take place in federal court, with the broader jury pool.
(Reporting by Tom Hals in Wilmington, Delaware; editing by Noeleen Walder, Amy Stevens and Stephen Coates)