There’s a particular kind of legal analysis that lawyers refer to as “law porn”: It involves a complex legal issue in which the settled law is not entirely clear, invites nuanced arguments for either side, and gets dorky lawyers really, really excited. One example of this is the recent motion by Donald Trump’s former chief of staff, Mark Meadows, to have his case in Fulton County, Georgia removed to federal court. There is a chance that Meadows might be able to prevail on his request given some of the gray areas of the law that favor him. But if Meadows prevails, it would be a blow to the principles of federalism, and will reveal (once again) that the law as it is written doesn’t contemplate a situation where the sitting U.S. president enlists the people working under him to help overturn an election.
So first, some quick and dirty notes about removal. Congress establishes the jurisdiction of the federal courts, and has provided that in certain circumstances cases arising in state court can be transferred into a federal court. This typically occurs in the context of civil cases, but can occur in limited instances in state criminal prosecutions as well. In order to have his prosecution removed to federal court, Meadows has to show that at the time of the alleged criminal conduct 1) He was a federal officer; 2) He was acting under “the color of such office”; and 3) He has a colorable federal defense to assert against the charges.
The removal statute makes sense if you think about ways that a rogue state could try to impede or punish federal officials for executing their lawful duties. Imagine, for instance, FBI agents trying to investigate or enforce civil rights laws in a state that is hostile to such laws. You could see a state or local prosecutor deciding to harass or intimidate those agents by charging them with trespassing, or some other crime, and forcing them to stand trial in a state court overseen by a local, elected judge. No bueno. The idea here is to ensure that when federal officials are literally just doing their job (and executing or enforcing federal law), states shouldn’t be able to weaponize state law against them. The tricky part in Meadows’ argument is the interplay between the legal criteria for removal and the particular facts underlying his role in facilitating the attempted coup in Georgia.
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