Huq teaches at the University of Chicago Law School
The first skirmish of the Georgia prosecution erupted on Wednesday, August 16 when former White House chief of staff Mark Meadows asked for his case to be moved to federal court: Former President Trump likely will follow suit soon.
Both hope that by shifting to federal court, they will get more favorable jury pools pulling from outside metro Atlanta. But both could argue that there’s a bigger principle at stake. Imagine if every time a new president took office, an elected state prosecutor of the other party drummed up a grand-jury indictment alleging campaign-finance or financial wrongdoing. With 50 states and countless counties and municipalities, it’s easy to imagine the churning chaos that could follow. Far better, therefore, to channel all such cases into federal court, where lifetime judicial appointees sensitive to national interests would manage those cases in an orderly way.
It's a powerful argument, especially for Trump. But until Congress changes the rules for moving cases from state to federal court, it offers no lawful ground for changing courthouses: Trump’s case should, as a matter of law, stay in the Fulton County Courthouse—even when it might be better for the nation for a federal court to handle it.
Understanding why this is means digging a bit into the obscure law that governs relations between federal and state courts. Normally, each judicial system does its own thing: Judges on both sides keep out of each other’s way. Congress, however, has identified a carefully cabined class of cases that can be moved from state to federal court as soon as papers are filed. This is called “removal.”
The kind of “removal” at stake with DA Fani Willis’s case is called “federal officer” removal. Since 1815, Congress has allowed certain federal officers to remove cases filed against them in state court. The first such removal statute was enacted against the backdrop of state hostility to federal tax-collection efforts sparked by the war of 1812. The nullification crisis of the 1830s and the Civil War gave Congress fresh cause to enact new measures in the teeth of roiling state anger on different issues.
The present version dates from 1948. It covers all “federal officers” and applies to “any act under color of such office … for the apprehension or punishment of criminals or the collection of revenue.” Despite the qualifying language, the Supreme Court has read this language sweepingly in civil cases to capture any state case where an official defendant is sued based “solely” on their “official duties,” even if they have nothing to do with the criminal law or taxation.
Were this the relevant test, both Meadows and Trump would have a powerful argument for removal. But it’s not: The Supreme Court has carved a narrower ground for removal in criminal cases since the state has a greater interest vindicating criminal as opposed to civil law. Here, the Court has insisted that removal is only allowed when the defendant has “a colorable defense under federal law.”
The leading case, Mesa v. California, was written by Reagan-appointee Sandra Day O’Connor, a former state legislator always mindful of states’ constitutional interests. Explaining the need for a specific “federal defense,” Justice O’Connor offered a constitutional rationale: Article III of the Constitution defines a fixed and limited categories of cases that can be funneled from state to federal court. This includes cases turning on federal law. Unless the Court insisted on a “colorable” federal defense, she explained, defendants might remove cases that did not meaningfully turn on questions of federal law. There would, said O’Connor, then be “serious doubts” about the constitutionality of federal-officer removal.
Willis has drafted an indictment that makes it exceedingly hard for Trump to meet this standard. (Meadows is a much closer case). For one thing, Acts 156 and 157 alleged in the complaint pick out actions Trump took on September 17, 2021, still importuning Georgia Secretary of State Brad Raffensperger to decertify the election. There is no plausible “federal defense” for these actions, which occurred at a time when (all agree) Biden was in the Oval Office.
Even the famous January 2, 2021 call by Trump to the Georgia Secretary of State’s office has no plausible “federal defense.” Trump may try to characterize the call as presidential enforcement of the criminal law against election fraud. But this is not a “colorable” claim. After all, it was the Justice Department’s role, not the White House’s, to investigate potential federal crimes. And as former Attorney General William Barr told the January 6 Select Committee, it had done so and “did not see evidence of fraud, you know, that would have affected the outcome of the election.”
In any event, Trump’s own questions to Raffensperger plainly give the lie to any claim to be acting in a presidential capacity, rather than as a disgruntled candidate. No prosecutor imaginable says “I just want to find, uh, 11,780 votes, which is one more than [the 11,779 margin of defeat] we have, because we won the state.”
However Meadows and others are treated, then, Trump cannot remove his criminal case from Georgia courts under existing law. If he were to take his case up to the Supreme Court, the current Justices would be forced not just to alter the meaning of a 75-year-old federal law—but to confront Justice O’Connor’s deep-rooted and powerful constitutional argument. Doing this would demand an enormous, and very plainly partisan, lift.
None of this, however, means that those concerned with democracy and the rule of law should rest easy: Just as in 1815, 1830, and 1865, there is a powerful federal policy interest in centralizing prosecutions against national candidates. It is not implausible to think that Congress could enact a statute expanding “national candidate” removal to avoid the evil of rogue prosecutions. And perhaps it should do so: Such a measure might well have appeal on both sides of the aisle right now, albeit for different reasons.
But until that happens, what happens in Fulton County has to stay in the Fulton County Courthouse—at least where Trump is concerned.
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