Georgia v. Meadows

88 F.4th 1331

The STATE of Georgia, Plaintiff-Appellee, v. Mark Randall MEADOWS, Defendant-Appellant.

No. 23-12958

United States Court of Appeals, Eleventh Circuit

Filed: December 18, 2023

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:23-cv-03621-SCJ

Francis McDonald Wakeford, IV, Alex Bernick, Adam Ney, Fani T. Willis, John William Wooten, Daysha D'Anya Young, Fulton County District Attorney's Office, John E. Floyd, Bondurant Mixson & Elmore, LLP, Atlanta, GA, Anna Green Cross, Cross Kincaid, LLC, Decatur, GA, for Plaintiff-Appellee.

John S. Moran, George James Terwilliger, III, Francis Aul, Robert Bittman, Michael Lee Francisco, Emily E. Kelley, McGuireWoods, LLP, Washington, DC, Joseph Matthew Englert, McGuireWoods, LLP, Atlanta, GA, for Defendant-Appellant.

Maithreyi Ratakonda, Brooklyn, NY, Jonathan L. Williams, States United Democracy Center, Washington, DC, for Amici Curiae Erwin Chemerinsky, Amy Lee Copeland, Sarah R. Saldana, Shan Wu.

Seth Paul Waxman, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC, for Amici Curiae Donald B. Ayer, John J. Farmer, Jr., Charles A. Fried, Stuart M. Gerson, J. Michael Luttig, Alan Charles Raul, William F. Weld.

Michelle S. Kallen, Jenner & Block, LLP, Washington, DC, for Amici Curiae Constitutional Law Scholars, Former District and State's Attorneys, State Attorneys General, U.S. Attorneys, Assistant U.S. Attorneys, Law Enforcement and Dept. of Justice Officials.

Before William Pryor, Chief Judge, and Rosenbaum and Abudu, Circuit Judges.

William Pryor, Chief Judge:

This appeal requires us to decide whether Mark Meadows, former chief of staff at the White House, may remove his state criminal prosecution to federal court under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). After a Fulton County grand jury indicted Meadows for conspiring to interfere in the 2020 presidential election, Meadows filed a notice to remove the action to the Northern District of Georgia. The district court held an evidentiary hearing and then remanded because Meadows's charged conduct was not performed under color of his federal office. Because federal-officer removal under section 1442(a)(1) does not apply to former federal officers, and even if it did, the events giving rise to this criminal action were not related to Meadows's official duties, we affirm.

I. BACKGROUND

Mark Meadows served as chief of staff at the White House and assistant to former President Donald Trump when the November 2020 presidential election occurred. Trump lost his bid for reelection by a margin of 306 to 232 in the Electoral College. In 2023, a Fulton County grand jury indicted Meadows, Trump, and 17 other defendants with crimes related to election interference in Georgia. The indictment charged Meadows with two state law crimes: conspiracy in violation of the Georgia Racketeer Influenced and Corrupt Organizations Act, see GA. CODE ANN. § 16-14-4(b), (c), and soliciting the violation of oath by a public officer, see id. §§ 16-4-7, 16-10-1.

The indictment alleged that Meadows joined and committed eight overt acts in furtherance of an illegal conspiracy to "change the outcome of the election in favor of Trump." These eight acts were as follows:

Act 5: Attending a meeting with Michigan state legislators in which Trump "made false statements concerning [election] fraud."

Act 6: Sending a text message to United States Representative Scott Perry of Pennsylvania that asked, "Can you send me the number for the speaker and the leader of PA Legislature. POTUS wants to chat with them."

Act 9: Meeting with Pennsylvania state legislators to discuss holding a special session of the Pennsylvania General Assembly.

Act 19: Requesting that Trump political aide John McEntee prepare a memorandum "outlining a strategy for disrupting and delaying the joint session of Congress on January 6" by having former Vice President Mike Pence "count only half of the electoral votes from certain states."

Act 92: Traveling to Cobb County, Georgia, to attempt to observe a nonpublic signature match audit, at which point state election officials had to "prevent[ ] [Meadows] from entering into the space where the audit was being conducted."

Act 93: Arranging a telephone call between Trump and Georgia Secretary of State Chief Investigator Frances Watson, in which Trump "falsely stated" that he had won the presidential election "by hundreds of thousands of votes" and told Watson that "when the right answer comes out you'll be praised."

Act 96: Sending a text message to an employee of the Office of the Georgia Secretary of State that asked, "Is there a way to speed up Fulton county signature verification in order to have results before Jan 6 if the trump campaign assist financially."

Act 112: Soliciting Georgia Secretary of State Brad Raffensperger to violate his oath of public office by "unlawfully altering" "the certified returns for presidential electors," in violation of Georgia Code sections 16-4-7 and 16-10-1.

Meadows filed a notice of removal in the district court, see 28 U.S.C. § 1455, based on federal-officer jurisdiction, see id. § 1442(a)(1). Meadows argued that the overt acts charged in the indictment related to his official responsibilities as chief of staff and that he had colorable federal defenses. The district court denied summary remand and ordered an evidentiary hearing. See id. § 1455(b)(5).

At the hearing, Meadows testified about his role as chief of staff. He explained that his job was a "24/7" responsibility and that his function "was to oversee all the federal operations" and to "be aware of everything that was going on." He stated that his responsibilities included meeting with cabinet officials, members of Congress, business leaders, and state officials, including governors. Meadows was invited to "almost every meeting" involving the President, as either a principal or an observer. He advised the President on a range of federal issues, from national security to the agricultural supply chain to prescription drug policy. He also gave political advice and explained that "everything that [the President] do[es] from a policy standpoint has a political implication." Declarations from White House staffers corroborated that Meadows was "on duty" at all hours even when away from the White House and that he was responsible for "managing the President's calendar" and "arranging meetings, calls, and other discussions with federal, state, and local officials."

Meadows testified that he understood that, as chief of staff, he was bound by the Hatch Act. See 5 U.S.C. § 7323(a)(1) (providing that a government employee may not "use his official authority or influence for the purpose of interfering with or affecting the result of an election"). Meadows understood the Act to prevent him from "advocat[ing] for a particular candidate" in his official capacity and from "campaign[ing] actively . . . in [his] official title."

Finally, Meadows testified about his responsibilities as specifically related to the overt acts charged in the indictment:

Act 5 (Michigan legislators meeting): Meadows testified that he was present and that "most of that [meeting] had to do with allegations of potential fraud in Michigan." He stated that his presence was relevant to his responsibility to broadly "give advice to the President" and to "be aware of what is consuming the President's time."

Act 6 (Scott Perry text): Meadows acknowledged sending a text message asking for the phone number of the Pennsylvania House Speaker and testified that he "regularly" retrieved the phone numbers of state officials for the President.

Act 9 (Pennsylvania legislators meeting): Meadows testified that "to the best of [his] recollection," he was not at the portion of the meeting discussing the election.

Act 19 (McEntee memorandum): Meadows testified that he did not ask McEntee for any memorandum on a strategy to disrupt Congress.

Act 92 (Cobb County visit): Meadows testified that his observation of the nonpublic signature match audit in Cobb County was relevant to the "transfer of power" to the Biden administration, because the "open question . . . in the President's mind" about Georgia voter fraud posed a roadblock to the transition plan. According to Meadows, the visit "relate[d] completely" to his official responsibilities because he needed to "look at the [signature audit] process that they were going through" to ensure "everything [was] being done right" to smooth the transition. Meadows also testified that he went to Cobb County under his own discretion and that "[n]o one directed [him] to go."

Act 93 (Watson call): Meadows admitted to arranging a call between Watson and Trump. He testified that the call was related to his chief of staff duties because "the President was interested in all of the election outcomes [being] . . . accurate as they affected him."

Act 96 (financial assistance text): Meadows admitted to sending a text message asking whether it was possible to speed up Fulton County's signature verification if the Trump campaign "assist[ed] financially." But he denied that the message was a "financial offer" and asserted that he "wasn't speaking on behalf of the [Trump] campaign." Instead, Meadows explained that he had recently learned that a Wisconsin vote recount was possible if the Trump campaign paid for it, so he wanted to understand if a Georgia recount was also impeded by "financial constraints." Meadows testified that he wanted to understand whether the impediment was "a financial resource issue . . . [or] man-power issue.

Act 112 (Secretary Raffensperger solicitation): Meadows admitted to being on the call with Trump, Secretary Raffensperger, and several attorneys who represented either Trump personally or the Trump campaign. Meadows testified that the purpose of the call was to obtain "signature verification in Fulton County" and that the President wanted to find "a less litigious way" of doing so. Meadows asserted

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