However, in a tightly reasoned 49-page opinion, Jones not only denied Meadows’s removal request, dealing a blow to him and others seeking refuge in federal court, but also underlined a serious problem for former president Donald Trump’s immunity defense to state charges.
Jones found that the relevant inquiry concerned whether Meadows’s alleged actions “go the heart of Meadows’s participation in the alleged criminal enterprise and whether those activities related to the scope of his federal office.” Jones wrote:
The Court concludes that Meadows has not met even the “quite low” threshold for removal. Again, what the Court must decide for purposes of federal officer removal is whether the actions Meadows took as a participant in the alleged enterprise (the charged conduct) were related to his federal role as White House Chief of Staff. The evidence adduced at the hearing establishes that the actions at the heart of the State’s charges against Meadows were taken on behalf of the Trump campaign with an ultimate goal of affecting state election activities and procedures. Meadows himself testified that working for the Trump campaign would be outside the scope of a White House Chief of Staff.
Jones said that because the Hatch Act explicitly prohibits federal officials from engaging in political or campaign-related activities, Meadows’s actions in Georgia to assist the Trump campaign could not be within the scope of his federal duties. (“The Court finds that the color of the Office of the White House Chief of Staff did not include working with or working for the Trump campaign, except for simply coordinating the President’s schedule, traveling with the President to his campaign events, and redirecting communications to the campaign,” Jones held. “Thus, consistent with his testimony and the federal statutes and regulations, engaging in political activities … exceeds the outer limits of the Office of the White House Chief of Staff.”)
Jones cleverly pointed out: “Assuming jurisdiction over this criminal prosecution would frustrate the purpose of federal officer removal when the state charges allege — not state interference with constitutionally protected federal activities, but — federal interference with constitutionally protected state actions.” That’s a bitter pill for Republicans infatuated with states’ rights.
Among the Georgia defendants, Meadows probably had the strongest case for removal, given his official job as the president’s gatekeeper, former prosecutor Joyce White Vance told me. Nevertheless, “trying to steal an election is not within the job description of the president’s Chief of Staff,” she said. As for the other defendants, many were not federal employees at all (e.g., John Eastman, Rudy Giuliani, the phony electors). And given that they were all engaged in activities outside the executive’s role, their efforts to remove should also be rebuffed.
But Jones’s opinion carries graver implications for Trump.
Trump’s defense rests on the notion that he was engaged in his presidential duties and, therefore, is immune from prosecution. Jones explicitly rejected this: “As a constitutional matter, executive power does not extend to overseeing states’ elections. … Here, there is clear constitutional authority delegating the procedures of elections to the States.” He concluded that “the executive branch cannot claim power to involve itself in States’ election procedures when the Constitution clearly grants the States the power to manage elections under the Elections Clause.”
In other words, Trump had no legal role as chief executive in post-election vote determination. When Jones pointed out that Meadows’s actions — such as meeting with Michigan electors, taking part in a phone call in which Trump asked Georgia Secretary of State Brad Raffensperger to “find” more votes and setting up a call between Trump and the Georgia secretary of state’s chief investigator — fall outside the executive branch role, he effectively cut off Trump’s claim that these activities were within the outer perimeter of presidential power. If Jones’s view holds, Trump lacks an immunity defense.
“The central question in the removal and in the prosecution itself — indeed the core of trying to understand the attempted coup — is whether there’s any possible legal justification for what was done,” Trump indictment guru Norm Eisen told me. “Judge Jones is the latest to make clear there was not, and that is very bad news indeed for Meadows, Trump and the other 17 co-defendants.” In Eisen’s view, “this opinion has much broader importance than just resolving one defendant’s removal, and it has undoubtedly sent a chill down the spine of all 19 of those named in the indictment.”
Meadows, who already filed notice of appeal, and other defendants will try to chew up more time asking the U.S. Court of Appeals for the 11th Circuit and ultimately the Supreme Court to reverse Jones’s decision. However, constitutional scholar Laurence H. Tribe told me, “This is a carefully reasoned opinion that I believe should be quickly upheld on appeal by the U.S. Court of Appeals even in this conservative circuit. I think the Supreme Court would almost certainly deny cert.” As for Trump, Tribe said he thinks that “the handwriting on the wall should be clear even to the former president: trying to overturn a free and fair election to stay in power even after losing the electoral vote isn’t part of the job description for the federal chief executive.”
And let’s remember: The phony-elector scheme at issue in Georgia is also central in the federal prosecution in D.C. If U.S. District Judge Tanya S. Chutkan lines up with Jones, Trump is on a glide path to trial on federal charges on March 4 with no constitutional cover. Simply put, Trump finally might face the judgment of his peers, sitting as jurors, precisely as the rule of law requires.
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