Mark Meadows RICO removal appeal heard by 11th Circuit

Then-President Donald Trump speaks as then-White House Chief of Staff Mark Meadows listens in July 29, 2020. (Photo by Alex Wong/Getty Images)

A three-judge panel on the U.S. Court of Appeals for the 11th Circuit on Friday didn’t appear to warm to former White House chief of staff Mark Meadows’ arguments that he should be able to remove his Georgia RICO case to federal court.

Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, and U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, heard the oral arguments and repeatedly pressed Meadows’ lawyer George Terwilliger on why former federal officials, like Meadows, should be able to use the statute designed to shield current officials from prosecution for acts taken under the color of their office.

Meadows is accused in Georgia of participating in a racketeering enterprise which “refused to accept that Trump lost, and […] knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.”

The grand jury indictment secured by Fulton County DA Fani Willis (D) alleged that Meadows joined efforts to overturn Trump’s 2020 election loss by unlawfully soliciting Georgia Secretary of State Brad Raffensperger (R) to break the law “by unlawfully altering, unlawfully adjusting, and otherwise unlawfully influencing the certified returns for presidential electors for the November 3, 2020, presidential election in Georgia[.]”

In short, the prosecution maintains that though Meadows was the chief of staff at the time of the alleged acts, those acts were geared towards Donald Trump’s presidential reelection campaign and fell outside the scope of his duties.

U.S. District Judge Steve Jones, a Barack Obama appointee, wrote in September that Meadows failed to clear the “quite low” bar for removal, writing that only one of the eight alleged Meadows overt acts outlined in the Fulton County RICO indictment “could have occurred within the scope of Meadows’s federal office.”

“Instead, the evidence before the Court overwhelmingly suggests that Meadows was not acting in his scope of executive branch duties during most of the Overt Acts alleged,” the judge wrote. “Even if Meadows took on tasks that mirror the duties that he carried out when acting in his official role as White House Chief of Staff (such as attending meetings, scheduling phone calls, and managing the President’s time) he has failed to demonstrate how the election-related activities that serve as the basis for the charges in the Indictment are related to any of his official acts.”

In her ensuing brief filed with the 11th Circuit, DA Willis said Meadows testimony under cross-examination at an evidentiary hearing was enough to show that removal was not warranted here.

More Law&Crime coverage: Trump RICO prosecutor says Mark Meadows’ own cross-examination in court reveals glaring ‘problem’ in bid to blow up state case

“Meadows conceded that working for a political campaign, specifically the Trump Re-Election Campaign, would be outside the scope of his federal office,” Willis wrote.

The 11th Circuit panel’s line of questioning for Terwilliger on Friday was laser-focused on Meadows’ assertions that all of his actions stemmed from his official duties as White House chief of staff, as if Meadows “could do anything” and claim those acts were within the scope of his office.

Judge Rosenbaum, referring to Meadows’ cross-examination, remarked, “According to him, it seems like everything is in his official duties, and that just cannot be right.”

Judge Abudu: But Meadows’ testimony did not provide for any limits on his conduct.

My question: how do you reconcile his behavior with the clear prohibitions of the Hatch Act?

— Katie Phang (@KatiePhang) December 15, 2023

Judge Abudu asked Terwilliger how he could square assertions of a limitless scope of duties with Hatch Act prohibitions against “certain political activities of federal employees.”

“It’s not at all clear as a matter of law that the Hatch Act even applies to a senior cabinet official, such as Mr. Meadows,” Terwilliger answered.

Chief Judge Pryor, for his part, expressed skepticism that Congress intended the removal statute to cover former federal officers, as the statute makes no mention of former officers. Pryor also noted that the state of Georgia’s prosecution is not interfering with the Biden administration.

Terwilliger conceded that “it’s not interfering with the Biden administration,” but he argued the prosecution is interfering with the federal laws, meaning the federal questions raised by Meadows must be resolved in federal court.

The Meadows lawyer also raised concerns about a “chilling effect” if the 11th Circuit rules Meadows cannot remove the case to federal court.

Donald Wakeford, arguing for the state, emphasized that Meadows failed to provide “a cogent explanation” of what the scope of his duties were when he testified under cross-examination.

Wakeford argued Meadows “provided no limits whatsoever” and asked the court to “rubber stamp” those baseless assertions, regardless of what the Constitution, the Hatch Act, or the plain text of the removal statute say on the matter.

Then Pryor asked how the court should address the concern about a “chilling effect.”

Wakeford submitted that maybe certain actions by federal officials “should be chilled,” attributing that point of view to U.S. District Judge Tanya Chutkan, Trump’s Jan. 6 trial judge in Washington.

The panel pressed Wakeford on whether interpreting the statute his way would “chill” others from running for public office in the future.

Wakeford acknowledged that there could be “abuses” of the interpretation, but said those abuses would flow from the text of the removal statute (which, again, does not mention former officers) — and that would be something for Congress to amend, not for the courts to remedy here.