For the past two years, former White House chief of staff Mark Meadows hasn’t exactly been the invisible man. He’s been there to help Republicans figure out how to create House rules that let them spend all day screaming about Hunter Biden’s laptop while avoiding any actual work. Members of the ultra-right Freedom Caucus even talked to Meadows about making him speaker, if only to end Kevin McCarthy’s 15-round embarrassment.
But when it comes to the federal indictments against Donald Trump, tumbleweeds and dust have been blowing through the streets of Meadowsville. Meadows has been treating Trump’s legal woes with the silence of the tomb—or the silence of someone who long ago cut a deal with federal prosecutors and offered up his testimony in exchange for not being made part of Trump’s federal felony indictments for attempting to overturn the 2020 election. It’s far from certain that Meadows has made a deal with the Department of Justice, but evidence just keeps piling up.
However, Meadows was not absent in the indictment turned out by Fulton County District Attorney Fani Willis. In fact, Meadows features in the indictment 14 times, doing everything from soliciting information on false electors in Pennsylvania to helping Trump lean on state officials in Georgia. That was enough to land Meadows two charges in the Georgia indictment, whether or not he made a deal with special counsel Jack Smith’s office.
Now Meadows has used an unusual legal defense in an attempt to slide those cases out of Georgia and back to federal court so he can make them go away. It’s not going to work.
Considering the frequency with which Meadows’ name is scattered around the indictment, it’s a wonder that he only ended up with two charges. Even so, the charge of solicitation of oath by a public officer could still net Meadows a five-year sentence. The underlying charge, which came under the Racketeer Influenced and Corrupt Organizations Act, could not only make that sentence three years longer, but under Georgia law, it also makes it almost impossible for Meadows to get off with probation.
That Meadows has only those two counts may be due to some coordination between Smith’s and Willis’ offices. Or not. In any case, it certainly makes Meadows a prime candidate to volunteer to be first to spill all he knows to Willis in exchange for having that RICO charge removed. (Though he may have to move quickly if he wants to beat out fellow indictee Jenna Ellis.)
But first, Meadows is trying something else. Last week, he filed a notice in federal district court asking that his charges be moved from Georgia to that federal court. That notice made no secret of the fact that if the charges are moved, Meadows intends to request a dismissal. He intends to do this on the grounds that since he acted in his role as a federal official, he can’t be prosecuted by a state court.
Nothing Mr. Meadows is alleged in the indictment to have done is criminal per se: arranging Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President. One would expect a Chief of Staff to the President of the United States to do these sorts of things.
It all sounds so innocent when you leave out the part where Meadows arranged those Oval Office meetings with false electors, contacted those state officials in an attempt to get them to change the outcome of the election, and the state government building he visited was an election office where Meadows tried to break into an audit of signatures.
Meadows’ attorneys at least managed to make a decent enough case that a federal judge agreed to give him a hearing, which is currently scheduled for next Monday. However, the Brookings Institution has a good explanation of why Meadows’ attempt to remove the charges from Georgia has “a very steep hill to climb.”
While the language included in the notice written by Meadows’ attorneys appears to be compelling and the section of the law protecting federal officers from prosecution by states appears to be extremely broad, that’s only because Meadows’ team left out a few very important items from their description of that law. According to the Brookings Institution:
A federal official is not immune from state criminal prosecution “simply because of his office and his purpose,” but instead must meet two conditions: 1) the federal official must have been engaged in conduct authorized by federal law or the Constitution; and 2) the official must have done no “more than what was necessary and proper” to effectuate his federal duty.
Meadows’ big problem here is that overturning a federal election is not “his federal duty,” and no amount of saying “Trump told me to” will make it so. Just following orders is not enough, even if that was all he did.
Some really good evidence that Meadows’ maneuver is going to fail can be found in noting that Trump himself already tried this when attempting to get out of his charges in New York. That effort failed, with the judge citing a Supreme Court decision from 1926 stating in part that:
It must appear that the prosecution of him, for whatever offense, has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty.
Meadows is going to have a difficult time arguing that trying to break into a Georgia audit of mail-in ballots was part of his “federal duty” or that bringing groups of false electors to the White House was “enforcement of federal law.”
It’s possible that Meadows might find a federal judge who agrees. (It’s probably a very good thing that this case can’t be appealed to Judge Aileen Cannon.) However, Meadows has to start next week by proving that the White House chief of staff is in fact an “officer of the United States,” and that alone will be heavy lifting. Then he has to persuade the judge that duties of his office included the behavior that the indictment describes as “importuning Georgia Secretary of State Brad Raffensperger … to engage in conduct constituting the felony offense of Violation of Oath by Public Officer.”
His odds aren’t good.
When that little side trip is over, Meadows can see what kind of plea deal Willis has to offer him. If he’s lucky, it will be something that includes the word “months,” not “years.”
Did anything happen while we were all taking a well-deserved break? Something about Donald Trump being indicted not once, but two times! Also in the news: Florida Gov. Ron DeSantis’ campaign collapse. So much is happening!
