Fulton County Superior Court Judge Scott McAfee once worked as an assistant in the Complex Trial Division of that county’s District Attorney’s Office. Back then his supervisor was none other than Fani Willis, who has since become the district attorney.
McAfee has been assigned to oversee his old supervisor’s RICO case charging President Donald Trump and 18 others with criminally conspiring to overturn Georgia’s 2020 election. (READ MORE: Night Falls on Georgia)
He just announced that the trial of that case will be televised, and the reaction of the legacy media has been near orgasmic. With their eyes rolling back in their heads, leftist commentators can barely control themselves as they breathlessly report on this momentous decision. They are sure that this is going to be the O.J. Simpson trial on steroids and the final nail — at long last — in Trump’s political coffin.
If Jones allows removal to federal court, Meadows will be in a position to seek immunity from prosecution pursuant to the Supremacy Clause of the U.S. Constitution.
The hated Trump will be held up to public humiliation and degradation as he is forced to sit for months on end like some squirming con man as the evidence of his purported perfidy and criminality are broadcast for all the world to see.
Well.
I hate to be a buzz kill, but Trump’s televised show trial may be a long time coming, if ever. It seems that the pesky defendants have other plans and aren’t cooperating.
Consider the following.
Mark Meadows is one of the defendants in Willis’ inventive RICO case. He has been charged for actions taken while he was the White House chief of staff.
Meadows has filed a notice of removal to have the charges against him transferred from the state to federal court.
Other defendants have filed similar notices, and Trump is expected to do the same.
The federal removal statute provides that a criminal prosecution commenced in a state court against “any officer … of the United States … in an official or individual capacity, for or relating to any act under color of such office” may be removed to the federal court “for the district and division embracing the place where it is pending.” (READ MORE: Fani’s Gift to Trump)
The federal court in this case is the United State District Court for the Northern District of Georgia — Atlanta Division.
Willis’ RICO indictment concerns political activity by Meadows and others pertaining to Trump’s challenge to the conduct and outcome of the Georgia 2020 election.
Recently, federal Judge Steve Jones, an Obama appointee, held an evidentiary hearing at which Meadows testified for four hours. The key issue before the court is whether Meadows’ alleged political actions were performed “under color of” his office as White House Chief of Staff.
Following the hearing, Jones requested supplemental briefing from the parties on the following issue:
Count 1 of the Indictment [pertaining to Georgia’s RICO Act] contains a number of overt acts attributed to Mr. Meadows. Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office, be sufficient for federal removal of a criminal prosecution under [the statute]?
That’s a very interesting question. Which is my lawyer’s way of saying that I have no idea what the answer is. There are very good arguments on both sides of the issue, and it’s anybody’s guess which way Jones will decide. But whichever way he rules, the proceedings in state court against Meadows and any other defendant (such as Trump) seeking removal will be placed on indefinite hold. Here’s why.
If Jones allows removal to federal court, Meadows will be in a position to seek immunity from prosecution pursuant to the supremacy clause of the U.S. Constitution which limits states from imposing their laws on the federal government and its officials. But however Jones rules on this immunity issue, expect the losing side to appeal his decision to the U.S. 11th Circuit Court and beyond. (READ MORE: Trump’s Inferno: Part Two)
And even if, after years of litigation, Meadows is ultimately deemed not to be immune, the removed case would be tried in federal court before a jury drawn from the Atlanta Division of the Northern District of Georgia, which encompasses not just deep-blue Fulton County and light-blue DeKalb County but eight other counties where Trump more than held his own in 2020.
On the other hand, Jones could deny removal and remand the case to the Fulton County Superior Court. In that event, Meadows would undoubtedly appeal to the U.S. Circuit Court, which likely would stay the state court proceedings pending its review of the matter. And, if necessary, Meadows could take the case all the way to the U.S. Supreme Court. (Note: The federal courts have not yet answered the question as to whether a state prosecutor can appeal an order denying remand.)
In short, it will take years to resolve the issues raised by Meadows’ removal action. And the same goes for Trump and any other defendant seeking removal to federal court.
It appears that the plan to have the show trial of the century broadcast to the world is about to be short circuited.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net.
