The Comings and Goings of Insurrection

I suppose I should have warned you all I’d be on a bit of a holiday for two weeks, and so would have little detailed coverage of Trump’s various travails. This will just be a quick update.

The two big developments from yesterday were the status hearing in Trump’s case — where Judge Tanya Chutkan set a May 4, 2024 trial date — and the Mark Meadows removal hearing in Georgia, where he took the stand for a number of hours.

In the former, Trump’s attorney John Lauro engaged in a good deal of theatrics, wailing about how a man’s life is at stake and laying the groundwork for an appeal on assistance of counsel grounds (which would be after the trial). In the wake of that, Trump claimed he was going to appeal the trial date, which he can’t do.

It seems. to be lost on people that these arguments not only serve the normal legal purposes, in which case some of Lauro’s theatrics were over the top. But a lot of them are for the benefit of Trump’s cult. They need to believe both that he’s in control and that his return to the presidency is inevitable.

As noted, in Georgia Meadows took the stand for hours. Keep an eye out for Anna Bowers’ report over on Lawfare, which she promises will be “excruciatingly detailed.” In her Twitter account, however, it sounded like prosecutors made a bunch of good legal points about the scope of electoral duties. Judge Steve Jones sounds like he focused on the exclusion of the President from electoral duties reserved to the states. But he apparently also noted that the bar for removal is quite low.

There are two issues at stake for Meadows — first removal, but then a bid to dismiss the case. The former is more likely to happen than the latter.

Finally, unless anyone objects, on September 8, Judge McBurney will release the report from the Special Grand Jury in Georgia.

260 replies
      • N.E. Brigand says:

        A couple decades ago, a colleague liked to refer to her birthday, March 4th, as “the most active day of the year” for the same reason that in the world of so-called “pageantry arts” (marching band, drum corps, winter guard, etc.), there’s been something of a push over the past decade or so to get people to think of that day, i.e., “march forth,” in connection with marching bands. But in the northern hemisphere, at any rate, there’s not much marching band happening that day (you do see some pipe & drum and fife & drum groups in parades thirteen days later, of course).

  1. hollywood says:

    In the Georgia case, Chuck Rosenberg says there is a 3 prong test for removal of a case to federal court under these circumstances. I believe he said that Trump fails the second prong having to do with whether or not he was engaged in his official duties while making the call, etc.
    Meanwhile, in the January 6 case, Trump continues to push the envelope on impermissible comments. What’s the appropriate sanction? Monetary? Seizure of his phone(s) and his internet accounts? Advancing the trial date? Limiting his fund raising? Some form of incarceration? He is daring the court to punish him so he can continue to play the martyr role and fund raise.

    • PostToaster says:

      I wonder if Trump breaking a consent decree could first be punished by “1 day per week in jail”. With the warning that more violations will go to two days a week, etc. And the one day could expire if he behaves.

      That *sounds* reasonable, defensible, gradual, and not affecting his First Amendment rights etc – hey it’s only 1 day out of 7 (!) – but would actually be horrific for him.

  2. Zinsky123 says:

    Mark Meadows is not a smart man. Not to education-shame, but the guy only has a two year associate of arts degree from U of South Florida. His behavior in the Freedom Caucus in the House was reprehensible and unproductive, which won him the admiration of the Orange Blob, who is even more reprehensible and unproductive. I fully expect Meadows to flip on Trump and do whatever it takes to save his slimy skin, as the man has no loyalty or spine. BTW – whatever happened with Meadows voting in two states? That should have queered any relationship with Trump if Trump were truly concerned with voter integrity!

    • Knowatall says:

      I believe that Meadows was registered in two states, not actually voting twice. In TrumpWorld this sort of gaming the system is encouraged (see Tommy Tuberville).

      • BirdGardener says:

        I have lived in NC. The first time I left, I sent back my voter’s card as required, notifying them that I had moved out of state. A number of years later I returned, and found that they apparently never removed me from their rolls, as I received a letter from the local political party chair scolding me for failing to vote in the interim. (I ripped the sender a new one, and they promised to stop their practice of attempting to shame registered voters who don’t vote. As far as I know, they kept their promise. FTR, I vote in every election in my proper district.)

        So it’s possible it’s actually not Meadow’s fault that he was registered in two places. IME, NC didn’t do a good job maintaining its voter rolls. As you know, they removed minority voters at the slightest excuse, and apparently ignored requests like mine. Now the latter could just have been a fluke, but the former was no accident.

        • Super Nintendo Chalmers says:

          That’s not what happened at all. His Macon County, NC voting address was a trailer on the property of Some Dude. He had never lived there nor did he own property there or nearby. The NC AG declined to charge him.

          BTW, he was registered in THREE states, not two (South Carolina, North Carolina, and Virginia).

          • LizzyMom says:

            Wasn’t there something about his wife having voted from the trailer address? I seem to recall she was somehow mixed up in it too.

          • earlofhuntingdon says:

            Yep, Mr. anti-voter fraud, Meadows, apparently voted in more than one state, but avoided indictment for it. NC, at least, has since removed him from its voter rolls.

          • BirdGardener says:

            Thanks; I’d completely forgotten about that! I cannot seem to keep up with all the hypocrisy and criming. :/

      • nord dakota says:

        Well, there’s proof the 2020 election was fraudulent and should be overturned, because voter rolls do not get “a cleaning” just like lungs should have been getting during Covid. Makes no difference whether dead people voted or live people voted 2x or non-citizens voted and certainly not if just a few of just folks voted, because the whole thing needed to be overturned.

        sarcasm of course.

    • Tech Support says:

      The correlation between level of education and cognitive ability is weak generally, and nonexistent for certain categories of cognitive ability. Nevermind questions on the real-world applicability of various degree programs.

      That said, Mr. Meadows public (or publicly disclosed) behavior certainly calls his judgement into question.

      • CoffaeBreak says:

        Meadows states that he did not fully understand the limits of his job as Chief of Staff. Isn’t this a form of defense pleading ignorance?

            • Cicero101 says:

              The element of intent appears to be in the third criterion:

              “ To satisfy the third prong, Meadows has asserted a federal defense called Supremacy Clause immunity, which shields federal officers from state prosecutions arising from conduct they subjectively and reasonably believed to be “necessary and proper” in carrying out their federal duties.”


              • BRUCE F COLE says:

                And that’s why the subject of the absence of a role, Constitutionally, the office of the President plays in federal elections is so critical to prosecuting him and everyone in Trump’s circle who aided and abetted the attempted undermining of the 2020 election.

              • earlofhuntingdon says:

                The standard is a “reasonable subjective belief.” A low standard. Consequently, the argument will focus on the reasonableness of his belief.

              • flounder says:

                Really hard to for Meadows to meet the “necessary and proper” element when he was ignoring the WH counsel and DOJ opinions that election was proper, while throwing in his lot with Giuliani, Sidney Powell, John Eastman, and the Proud Boys.

    • Kenster42 says:

      “Not to education-shame” – Always good to stop right there and not continue, sir. Albert Einstein taught himself physics, algebra, calculus and Euclidean geometry because the schools at the time were teaching remote learning. Bill Gates, Mark Zuckerberg, Larry Ellison, Jack Dorsey, Steve Jobs, Richard Branson, Oprah Winfrey, Sergey Brin, Bill Hewlett, Paul Allen, Mike Bloomberg, Tom Cruise, Richard Wright, Maya Angelou, Abraham Lincoln, Andrew Carnegie, Benjamin Franklin, Ted Turner, Tiger Woods, Russell Simmons, Ralph Lauren, William McKinley, Reid Hoffman (who I know personally and is the smartest person I ever met) and Michael Dell all either didn’t attend or dropped out of college.

      Condemn Mark Meadows for his poor actions, but please don’t tie it to where he went to college. It’s lazy elitism at its worst.

      • Rayne says:

        Dear fucking gods, you used the likes of Zuckerberg, Dorsey, and Cruise as examples of insufficient education not hurting people?

        Way to self own, dude. And don’t give me any excuses pointing to industry or monetary success because that’s relative.

        Kind of like arbitrary measures secondary education.

  3. Savage Librarian says:

    Meadows’ Mark

    Try to remember the kind of November,
    Madness aglow and not so mellow,
    Try to remember the kind of November,
    Grass was green and greed was yellow.

    Try to remember the kind of November,
    You a pretender & shallow fellow,
    Try to remember, and if you remember,
    Then swallow…

    Swallow, swallow your pride.

    Try to remember when you surrender,
    that America wept like the willow,
    Try to remember after your bender,
    that schemes were kept by your pillow.

    Try to remember that dicey text sender
    with an ember about to billow.
    Try to remember, and if you remember,
    Then swallow…

    Swallow, swallow your pride.

    Deep in December, try to remember,
    although you know the snow will follow,
    Deep in December, try to remember
    who was hurt and whose heart hollow.

    Deep in December, try to remember
    fires of November that made us bellow,
    Deep in December, yes, remember
    what y’all owe…

    Y’all owe, y’all owe


    (with all due respect to Thomas Collins Jones)

    “TRY TO REMEMBER The Brothers Four”

    • PeteT0323 says:

      I wonder how many of us here actually remember that song.

      The Fantasticks 1960. A musical comedy.

      I always liked it a lot even being much younger amongst the early Rock-n-Roll era.

      Very clever!

      • Elvishasleftthebuilding says:

        Oh yes. I loved the soundtrack – Jerry Orbach.

        The Fantasticks, because of its minimalism was a popular high school musical back in my day. My high school put on the musical – I was not talented – I fell in love with the girl who was the mime and held the moon.

        In the case of Mark Meadows and other Republicans, another lyric comes to my mind – “plant a radish, get a radish not a brussel sprout – that’s why I like vegetables you know what they’re about!”

        And in the case of Trump – “you can have your rape emphatic, you can have your rape polite, you can have your rape with Indians a very charming sight, you can get the rape on horseback, they’ll all say it’s new and gay, so you see the sort of rape you get depends on what you pay.”.

      • Purple Martin says:

        Yes, I was in a college production of Fantasticks in 1973. Auditioned for El Gallo but played Mortimer (good choice…I’ve never been an El Gallo).

        Was a junior college in Idaho and we scandalized much of the local (heavily LDS) community. Drew an audience who knew only Try to Remember (the Ed Ames charted version in 1965) and Soon It’s Gonna Rain (on Barbra Streisand’s 1963 debut album) but weren’t expecting the, ummm, abduction song—only time I remember audience walk-outs in anything we did.

        • LeeNLP149 says:

          Boy that Ames fellow could sing! But perhaps more apt for our times was his rendition of “Who will answer?”

          • Tracy Lynn says:

            Lord, that’s a blast from the past! My parents owned every Ed Ames album ever produced. Both “Try to Remember” and “Who Will Answer” are now ear-worming thru my brain.

    • RipNoLonger says:

      Another excellent one, SL. But damn, I now have that earwig running non-stop. Just saw a high-school production of The Fantastiks – great little show.

    • RoseGold says:

      That’s great! I had to sing it out loud. I may sing it all day!
      …then swallow….swallow…😜
      I hope you have a wonderful vacation!

    • xxbronxx says:

      Kudos, SavLib. The Village was magical back in the 50s and 60s. The Fantasticks, Jacques Brel is Alive and Well (and Living in Paris), Gerde’s Folk City, and a bit later, The New York Dolls literally blowing down the Mercer Arts Center. Try to remember, indeed.

  4. Boatsail says:

    I find it hard to believe anyone could believe that Meadows efforts to subvert the 2020 election which Biden won by more than 7 million votes could be considered part of his duties in the Executive branch of government.

    Does not the crime-fraud exception apply here?

    • DrAwkward says:

      IANAL, but I think it’s an apple-orange comparison. In my layman’s understanding, the crime-fraud exception is concerned with client-attorney communications, which are privileged _except_ if they are made to promote the success or prevent the detection of a crime or fraud. Meadows is not making an argument about privileged communications, but rather whether his case will be tried in state or federal court. The common theme is that both hinge on whether a certain set of activities belongs to the set of activities permitted to someone in a given role: for crime/fraud, it’s whether certain communications are permissible for a client or attorney, and for Meadows, it’s whether his charged post-election acts were proper to his role as CoS.

    • Unabogie says:

      I think (IANAL) what is at issue here is where the case will be tried. If Meadows was committing crimes as part of his role as a federal officer, that gets tried in a federal court, whereas if he was doing crimes in his off-hours, that gets tried in the state courts. Meadows thinks that this court would be more advantageous to him than the one in Fulton County.

      • BirdGardener says:

        If it’s a federal crime, a Republican president could pardon him, no? Getting a pardon in Georgia for state-level crimes would be more difficult.

        • Drew in Bronx says:

          It’s not that it’s a Federal crime (that would be other charges, coming probably from Jack Smith, et al.) It is that it’s a Federal officer being charged with a state crime. This keeps Bureau of Land Management officers from being convicted by state courts in Idaho for doing their federal duties for instance. If they’re charged it would be tried in Federal court. If crimes really were committed they would be tried & penalized under state law by the Federal judge. Question here is whether Meadows was doing White House Chief of Staff job while criming, or being a general political operative/gopher doing crimes on behalf of Trump’s campaign.

            • Drew in Bronx says:

              Right. Though it does matter how the judge balances the two, doesn’t it? If Meadows is judged to be doing the Chief of Staff job (even if corruptly) more than the political operative job, wouldn’t that weigh heavily toward removal to Federal Court? While if the balance is the other direction, it would be toward leaving in state court?

              • pseudonymous in nc says:

                The legal / philosophical argument here is along the lines of “if you’re doing things that are prohibited in federal office” — basically, Hatch Act violations — “are you still working or are you by definition off the clock?” The amicus brief says you’re not a federal officer at the times you’re doing partisan election stuff, but I can also see a judge saying “yeah, he was a federal officer, just one doing things he wasn’t allowed to do.”

              • bmaz says:

                I think removal is unlikely, but it is likely a closer call than the TV lawyers would have you believe.

                • timbozone says:

                  Can it be appealed if the removal is denied? If he can appeal a denial of removal, then this might go all the way to the Supreme Court…

              • earlofhuntingdon says:

                I think the Hatch Act does two things, neither of them well. It makes certain conduct illegal, but offers milquetoast penalties for it.

                The more important thing it does, in this instance, is prohibit certain conduct, because it is partisan and, therefore, outside the scope of a federal employee’s duties.

                Demanding that a state election official invent nearly 12,000 votes for Trump, in an election he has already determined was fair and which Trump lost, is inherently partisan. It’s asking to throw the election for Trump, not assure its objective fairness.

                So, you could distinguish whether what Meadows did is illegal, from whether it is within the scope of his duties as a federal officer.

                • Joeff53 says:

                  That’s because it’s a figleaf law. The book gets thrown at low level drones for trivial stuff while bigwigs like Kellyanne get to thumb their noses.

                • timbozone says:

                  Not only that. In that call, doesn’t Trump refer to the NDGeorgia US Attorney as a “never Trumper”? That US Attorney resigned two days later on Jan 4, 2021, after the call was made public.

            • Pat Neomi says:

              And presuming it is a little of column A and a little of column B (which seems more arguably the case for Meadows than Trump), would that suggest that removal is likely? In other words, there’d be no way that those certain actions done under the color of federal office would be tried in federal court while the others were tried in state court, right?

              • nord dakota says:

                I know the Hatch Act is federal, but it brought to mind a county Sheriff we had for a long time. He spent a bunch of county money to paint his own name into the county seal on the deputy vehicle. Then he had to spend a bunch of his own money to get his name painted out (and repay the county I believe).

                Same guy had a sting operation to clean up warrants when Ozzy Osborne did a concert here. People with warrants got a “promotional ticket” in the mail to a free pre-concert party. Those who showed up (a large number of people) were met at the door by guys wearing concert t-shirts with a little cutout to display their badge.

                Ozzy threatened to sue over misuse of his name and image but never did.

          • Ralph H white says:

            I believe it’s mostly, or partly, about expanding the jury pool from Fulton County to the Northern District of Georgia in a federal trial. That includes Marjory Taylor Greens district.

            • Sherrie H says:

              My understanding is it would remain in the Atlanta division, so since only a small part of Cobb county is in her district there wouldn’t be much overlap.

  5. PJB2point0 says:

    A couple of questions about Meadows.

    First, I have seen it speculated (by Allison Gill and others) that Meadows is taking a shot at removal to federal court as a means to dismiss on federal immunity grounds and that if this fails, he will likely seek cooperation with the DA. Since he had to make a showing in support of his motion which seemingly required him to take the stand and deny wrongdoing, hasn’t he seriously damaged his value as a cooperating witness? In other words, by putting in all his chips on Plan A (removal then dismissal) has he nothing left to bargain with for Plan B (cooperation/reduced sentence?)

    Second, by taking the stand in this evidentiary motion, has Meadows waived his 5th Amendment rights to not testify in his defense at the trial? If so, presumably he can be impeached by his own prior testimony to the extent it is inconsistent with the evidence he and his lawyers probably has not digested yet?

    • Norskeflamthrower says:

      I also would like hear a lawyer weigh in on whether Meadows burned his value as a cooperating witness and whether in his testimony he also dumped his 5th amendment rights.

        • PJB says:

          Let me sharpen my first question and redefine it not to burning his value as a cooperating witness but diminishing it. I ask in this sense, should he seek to cooperate the government will undoubtedly require him to plead guilty to something which is directly contradictory to his sworn testimony of innocence. Does that contradiction, which Trump’s lawyer will exploit, render his trial testimony much less useful to the prosecution?

          [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. I’m sure this was just a one-time slip but please make sure to use “PJB2point0” as your name. /~Rayne]

  6. Former AFPD says:

    One reason a federal criminal defense attorney files a motion first is because that lawyer wants to control the litigation around a specific issue. I suspect that is what happened with Mark Meadows and his attorney. They wanted to have the first hearing in federal court about the removal issue. The first decision by a federal judge often colors what happens next, with each co-defendant, who seeks a similar remedy. In fact, Judge Jones’ decision could be dispositive for anyone else who files the removal motion. It is possible that all the other motions could get sent to him. I’m not sure if that will happen. If there has been a decision about who handles this litigation in the ND GA (that’s the federal court in the Northern District of Georgia), I have missed it.

    • says:

      Quick look at my downloads folder shows Jones presiding over these other removal motions, and some other — but not all — election cases. Makes sense, as federal-civil-case-filers must declare any known-pending-similar-cases to their own, so the same judge can preside, in interest of judicial economy (see Civil* Form JS44 Rev. 10/2020 NDGA, Box VIII, page 2 linked here )

      Stills 1:23-cv-03792-SCJ
      Shaffer 1:23-cv-03720-SCJ
      Clark 1:23-cv-03721-SCJ

      Pendergrass v. Raffensperger, No. 1:21-CV05339-SCJ (N.D. Ga.)
      Grant v. Raffensperger, No. 1:22-CV-00122-SCJ (N.D. Ga.).

      but he’s not the judge handling the ongoing Dinesh D’Xousa / True the Vote Case No. 1:22-cv-04295-SDG which is quite the soap opera! see LawFare for coverage.

      *Removal motions, even though of state CRIMINAL proceedings, are CIVIL actions in federal court. See Box IV.2 , page 1, form JS44

        • bmaz says:

          It “answers” jack shit. This is novel ground. I very much urge people to hold their water, and not find “experts”, including those here, as gospel. None of this is crystal clear.

          • Allagashed says:

            This might be the most pertinent thing you’ve written. I’m a retire farmer living in the back of beyond; I don’t claim to know the intricacies’ of this pageant, but I come here for enlightenment. Now and again, I even understand some of what is said here. I appreciate the honesty you just showed.

    • timbozone says:

      I expect that any Federal judge making those decisions in a case this serious will do due diligence when it deciding whether each individual defendant should have their case removed to Federal court. The assumption that each defendant is a cookie-cutter of the first one filing for removal misses how broadly “color of office” might be interpreted. Meadows, of the several folks who might want to removal their trials to Federal jurisdiction has neither strongest nor the weakest grounds to have that removal granted. IANAL

  7. Fiendish Thingy says:

    I’m puzzled as to why Meadows’ attempt to remove his case to federal court is “likely” to succeed at all…

    Anyone care to expand on Marcy’s prediction?

    • Kick the Darkness says:

      My wife and I were asking the same question this morning. According to Anna Bower the judge sounded critical of MM’s arguments as to why his conduct could be construed as part of his job, But the judge also stated the bar for removal was low. Since the argument for removal would seem to be the same argument MM would advance for dismissal, to my non-legal mind granting dismissal would appear to give that argument legitimacy. So I agree, it would definitely be interesting to hear more about the considerations at play, especially given the possibility of dismissal if he is successful in getting removal to federal court.

      • Tech Support says:

        Just based on my anecdotal experience following all of the legal reporting over the last few years, a Judge making a side remark about the process (like “the bar is low”) is intended as an expectation-setting statement for both parties.

        It wouldn’t shock me if the Judge’s ruling in this circumstance granted removal but included something to the effect of “the defense’s argument is mostly crap but they only needed to show X and even though they only barely managed to do that prior precedent favors the defense” or something to that effect.

        That might be what Marcy is anticipating here.

    • JonathanW says:

      I think the point is that removal is “more likely” than dismissal but I didn’t draw the conclusion that removal was “more likely than not” although perhaps I just missed that point of the article.

  8. bloopie2 says:

    In other ‘coup’ news, AP is reporting today that “Wisconsin Supreme Court chief justice accuses liberal majority of staging a ‘coup’”. Gee, that’s tough. What goes around (Republican control), comes around (Democrat control), eh?

    • scroogemcduck says:

      She seems to be having some trouble with the word “majority”. Ironic, since the members of the Wisconsin Supreme Court are elected, and the Chief Justice is elected by the members of the Court to serve a two year term.

    • earlofhuntingdon says:

      As does the Republican Party generally, the Wisconsin Sup. Ct. justice thinks majority rule doesn’t apply when the majority isn’t Republican. From press reports, the progressive majority on that court is doing everything by the book, which might be adding to the chief justice’s frustration. Authoritarian and fascistic of her.

      • harold hecuba says:

        Yeah, WaPo had a pretty good article about it. Mentioned that the Republicans initiated a ballot change to the state constitution and the voters in 2015 said, sure, let the justices figure out who wants to be chief. (apparently, a liberal chief justice was in charge at the time and once the ballot measure passed, guess who got demoted when the Republicans were able to choose?)

        Basically, this “coup” that the Wisconsin Republicans are whining about was put into place by the VOTERS who elected Janet Protasiewicz, with the justices doing what the VOTERS said they could do.

  9. Rugger_9 says:

    Well, I’m not so sure it will move to Judge Jones’ court, since he seemed dubious about the claims. The only rationale that makes sense is for a better jury pool away from just Fulton County. The charges are still state charges under federal rules of court. I’m not sure how it helps Meadows much less the other co-defendants trying the NDGA gambit.

    One of the commenters on the previous post (Timothy B at 1:38 pm) noted that all of this is possibly about ‘winning at the appeal’ which isn’t a slam dunk either.

    • pdaly says:

      In addition to a potentially more favorable federal jury pool, would Meadows’ (and/or Clarke’s, if Clarke’s petition for removal from state to federal court is successful) case be separated from the other GA defendants’ cases?

      Does that imply, however, that the GA defendants might have to show up as witnesses in Meadows’ hoped for federal court if called by the prosecution or defense?

      • scroogemcduck says:

        Yes, it would have to be separated – different court, different judge, different jury. The prosecution would be trying Meadows in federal court and Chesebro (possibly others who invoke the right to a speedy trial) in State Court before, and possibly long before, Trump gets his turn in the barrel. Trump will also, next week, make his own petition to remove his case to federal court and to have it dismissed.

        I’ve also heard some credible lawyers saying that whether the President could pardon state crimes which are tried in federal court is an open quesion, but honestly I have no idea.

        • earlofhuntingdon says:

          As to the latter, it’s an open question only in the minds of the Eastmans and Chesebros of the world. It’s another self-serving Republican fantasy.

  10. billtheXVIII says:

    A removed case sounds like a strange beast, trying a case of state substantive law with federal procedural law. How often does this happen in criminal cases ? Just security says a conviction would still not be pardonable…curious if you agree…thx

    • Tech Support says:

      Every legal analyst I’ve seen whose opined on the topic is in agreement that this has no bearing on whether someone convicted could be pardoned.

    • earlofhuntingdon says:

      The principal federal aspect to a case on removal is the forum: it’s tried in federal court, under federal rules of evidence and criminal procedure. Fulton County prosecutors would try it, because the crime and consequences remain creatures of state law, as does the ability of the state, not the president, to pardon or commute a sentence.

  11. Alzero53 says:

    Question: can the Senate assume that Trump is ineligible for office under the 14th Amendment and hold a vote to reinstate him? He would need a 2/3 majority for reinstatement which he would fail to accomplish, this would make him clearly and publicly ineligible for office. And would be clearly within the directives of the Constitution. I assume any Senator could introduce such a resolution, so why not?

    • vicks says:

      It’s interesting to consider the 14th amendment, or age limits or psych evaluations, but IMHO our founders’ got this one right the first time – we, or more realistically, powerful people in smoke filled rooms, shouldn’t fuck with the American voter’s right to cast a ballot for whoever the hell they want for thier President.
      Even to get rid of Trump.

    • wasD4v1d says:

      David Frum wrote a piece in The Atlantic about how invoking the 14th Amendment would be a disaster for this country at every level. (He makes the point that it was written primarily with Senators and Representatives in mind. Scary thought.)

  12. Dustbowl Observer says:

    To me (IANAL) the bottom line was spoken by Judge Jones when he asked: “Is there any part of the Constitution that outlines a role for the President in the administration of elections?” The answer, of course, is no, there is none. Therefore all the actions by Meadows “to assure a free and fair election” were completely outside his federal scope of duties. I am surprised that there is any prospect at all of the case being removed to Federal Court, no matter how “low the bar.”

    • punaise says:

      Speaking of the bar, any bar (slightly OT):

      Jack Smith’s team questions witnesses about how drunk Rudy Giuliani was while advising Trump: report

      Rolling Stone reported that according to lawyers and witnesses who have been in the presence of the special counsel’s investigating team, Smith is keen on determining Giuliani’s drinking habits because it could help show that Trump was actively employing counsel from someone he knew to be intoxicated. Proving this would bolster prosecutors’ argument that the former president was acting recklessly as he tried to undo the legitimate results of the election, an argument that, if used in court, could also erode Trump’s “advice of counsel” defense.

    • timbozone says:

      The President, as head of the Federal government’s Executive Branch is supposed to ensure that Federal laws are faithfully followed. Congress passed laws that directly impact state level elections. The DOJ, under the President are supposed to make sure that any violations of those laws are investigated if warranted. Thus, the President may direct DOJ to look into possible violations of these laws, and he may also direct the FBI to investigate any suspected irregularities. And, in fact, that appears to be what President Trump did do initially. He just didn’t like the fact that there were no earthshaking frauds found to bolster his regime. So, at minimum, one can assert easily enough that Trump was involved, through his office as President, in these matters to some degree.

      • earlofhuntingdon says:

        The DoJ would investigate credible allegations of election fraud, in Georgia or anywhere else. But it didn’t find any. It described claims to the contrary as laughable, including those by Jeffrey Clark.

        Trump also lost dozens of cases trying to prove the opposite. He didn’t like those answers so he ignored them. He attempted to investigate personally and through his campaign, which is not the same as the federal govt doing it.

        • FL Resister says:

          Didn’t Trump offer to pay Georgia officials for the cost of pursuing his bogus election fraud charges? (The more we learn the more we are shocked by the facts.)

          Our government owes it to US to televise the federal trials. After all, aren’t we the people not only the victims of the schemes to overthrow the 2020 election but also footing the bills for the investigations and prosecutions into these multifarious criminal acts.

  13. rosalind says:

    breaking on “bird” site: “New: US judge Steve Jones in ND Georgia enters new order for Mark Meadows — asks parties to brief on whether a finding that at least one of the overt acts in the Fulton County RICO indictment was under the color of his office, be sufficient to remove to federal court”

    • Rugger_9 says:

      I’m a bit surprised by this, because it would make more sense if any of the acts were outside the job scope then it remains in state court. Otherwise it looks like there is a risk of capture and kill of state-specific charges at the federal level.

      • EuroTark says:

        Popehat did an explainer on overt acts, which he compares overt to criminal acts:

        Call me an insufferable pedant or, worse, a former federal prosecutor, but for clarity I would have separated the things that the government says are racketeering acts from the things just being identified as overt acts, particularly in a case of such historical interest and in an area with such potential for confusion. The overt acts are evidence of the conspiracy; the criminal acts are predicate crimes for the RICO enterprise. They’re different and it would be clearer if they were more clearly listed differently.

        IANAL (and not even American), but my common-sense understanding would be that Meadows’ case should get removed to federal court if one the criminal acts was under the color of his office.

        • bmaz says:

          See what happens when actual criminal defense attorneys get involved? Listen to Ken. Though not sure it is dispositive as to the removal issue. But Fulton County brought this upon themselves with a ridiculously over broad indictment.

          And I very much doubt they want to go to federal court, that is not their own little sandbox like their own local court.

    • bmaz says:

      Hahahahaha. So, the over broad and overreaching Fulton County indictment may yet come back to bite them in the ass. Jones will have already had his clerks look at this before even asking the question. So….we shall see.

      • earlofhuntingdon says:

        Willis would have anticipated this, and will have her position ready. But Kremlin watchers, to borrow a Cold War phrase, will know what the question forbodes: if any of Meadows’s conduct is within the scope of his duties as a federal officer, all his conduct gets swept up with it and becomes cause for removal. Otherwise, the statute becomes moot. I look forward to how Willis deals with that.

        • bmaz says:

          Yeah, but it goes back to scienter/intent. This has never been the cut and dried element people, including here, have always assumed from the get go. Meadows seems to have semi-competent counsel. Yet to be seen whether Trump has even one such Atty.

          • timbozone says:

            Wouldn’t it be difficult to argue successfully that Meadows did not intend to fulfill his official duties by doing what the President asked him to do? Seems like it would be hard to prove with any good degree of certainty that Meadows was not acting as WHCoS for at least one of all the acts outlined in the Georgia indictment.

            Should be an interesting ruling when Jones comes down with one…which may be soon… or maybe months from now.

        • Savage Librarian says:

          “Willis would have anticipated this, and will have her position ready.”

          Yes, this seems to be it:

          Kyle Cheney says: “DA Fani WILLIS is asking the judge in the Trump racketeering case to fast-track all 19 of the defenants — not just Ken Chesebro — while permitting the others to file motions to sever from the larger case.”

          • bmaz says:

            That is absolute bullshit. Your quote proves exactly nothing in this regard. Because Fulton County WAY overcharged and overstepped their billet, does not mean that they “anticipated” anything, nor that their actions have been appropriate. It is a giant shit show that was absolutely unnecessary.

        • Rugger_9 says:

          Kremlinology was all the rage when I was working for the government. My question is whether the concept of any tie to government duties means moving to federal court has been adjudicated, because otherwise all sorts of malfeasance (i.e. bribery, theft, assault, etc.) looks like it can be swept under the rug so long as the defendant was doing one government task. That makes no sense.

          • earlofhuntingdon says:

            It’s not “swept under the rug.” The law and prosecutors remain the same, the case simply moves to federal court. If you’re the defendant, that’s still an intimidating place to be, even if you’re lucky enough to have bmaz as defense counel.

            • Rugger_9 says:

              In this particular courtroom, I’d agree, but what if we’re looking at Cannon or Kas in Amarillo? That’s why I asked whether the concept had been litigated that any one action is sufficient to remove the whole case to federal court.

          • scroogemcduck says:

            Not so long as the defendant was doing one government task. So long as one of the overt acts cited in the indictment as being part of the indicted conspiracy was a government task.

        • SteveBev says:

          Might the question turn on which overt acts?

          I am not at all sure that it should but it may be something that needs to be pondered if only to dismiss it upon consideration.

          Because some overt acts have greater significance within the indictment than others.

          Some overt acts are additionally charged in separate counts

          And other overt acts are additionally charged in separate counts and are specified as racketeering activities.

          In Meadows case in count 28 he is charged with Trump with solicitation of violation of oath relating to the phone call to Raffensberger, The conduct of both is specified as an overt act 112.

          Additionally Trumps conduct during the call is charged as making false statements in count 29, and the conduct is specified as a racketeering activity in act 113.

          Provided another racketeering activity is proved then that would be sufficient together with proof of those counts and acts (and the mens rea) to found a conviction on the RICO conspiracy.

          Whereas the other acts specified against Meadows are not necessarily unlawful in themselves

          Now if it be thought that “more significant “ acts are removable because they nevertheless satisfy the statutory requirements then so be it.

          But if it is only one or more of the less significant acts which are plausibly under the colour of office, and not the significant acts which are in truth and substance the heart of the criminality alleged then should the statute bite, particularly bearing in mind the principle

          “Because the regulation of crime is preeminently a matter for the States, we have identified ‘a strong judicial policy against federal interference with state criminal proceedings.’”

          [And to add a further refinement to the argument the “less significant” acts may themselves display more or less illegality, and so the fewer the number of those acts which could be said to be plausibly under the colour of office etc the stronger the case is reject removal ]

          • ColdFusion says:

            Only just finished my 2nd dose of caffeine, but to me anyway it seems like logically the case should stay. The charges aren’t exactly that every single thing listed is illegal on it’s own but taken together the end result was to change the result of a state election and disfranchise 2,473,633 Georgia voters. Too bad the law isn’t logical, it’s tailored. I’d prefer to see the Judge decide to keep him lumped with everyone else, and find that it should be removed to federal court only if every or something like 2/3 majority of the defendants were also acting as official federal agents because of the RICO charges and the ability of the defendants to have unfair advantages with separate/later trials.
            “I was just doing what my boss said he wanted me to do, and thought that lobbying for changing election results part of my job duties” should not be a valid excuse when the effort involved so many non-federal employees. If he was that deeply following Trump’s desires he should have known about most/all the different prongs of the alleged crimes and should be tried with them.

  14. Konny_2022 says:

    Judge Chutkan just denied several filings, the most recent reads (from


    Aug 29, 2023

    LEAVE TO FILE DENIED- Mot[i]on of Former Judges and Senior Legal Officials for Leave to File an Amicus Curiae Brief in Support of Government Proposed Trial Date and Schedule as to DONALD J. TRUMP This document is unavailable as the Court denied its filing. “This document is unavailable as the Court denied its filing. Although Courts have in rare instances exercised their discretion to permit third-party submissions in criminal cases, neither the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing of amicus curiae briefs. At this time, the court does not find it necessary to depart from the ordinary procedures course by permitting this filing”. Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)

    It speaks for itself, I think.

  15. WilliamOckham says:

    Judge Jones has asked for supplemental briefs about one question in Meadows’ removal case. In short, he wants briefs to address whether finding one, but not all, of the overt acts charged occurred under the color of Meadows office would be sufficient for removal.

      • Purple Martin says:

        …which gives DA Willis something that had not existed—an opportunity to file a response to Meadows’s motion, correct? (Asking because, obviously, IANAL.)

        • bmaz says:

          No, any state atty confronted would have the same opportunity. Making this as “only” about Willis is bullshit.

          • Purple Martin says:

            Shouldn’t have used the unnecessary specific name because, as you say of course, it has never been “only” about Willis (didn’t mean to imply that).

            So, to reword, does this give the Fulton county DA Office something that had not existed—an opportunity to file a response to Meadows’s motion?

            I’m not sure but you seem to be saying yes.

      • WilliamOckham says:

        Assuming there are no cases on point (because why would he ask for briefs if there were), I don’t even know where to begin from a logical perspective. I guess it’s a good thing I’m not a federal judge.

        • Rugger_9 says:

          So, it seems the answer to my question above is ‘no’ since otherwise Judge Jones would be able to decide on precedent.

  16. says:

    Curious if I could entice one of the attorney-moderators with byline privileges on this site to parse the due process claims that I believe are fatal to Willis’ RICO case for many of the ‘less-involved’ co-defendants. Anyone wish to opine? Succinctly argued, on pps. 25 to 26 of Shaffer’s removal motion, I assume this argument will be front and center (up a lot higher) in any D’s Motion to Dismiss (e.g., Cheseboro, Ellis, Clark). Because it is short and simply stated here, many of the IANA posters here should find it relatively easy to consume.

    The 1931 case upon which the argument lies — McBoyle, penned by Oliver Wendell Holmes, is another simple-ish argument, but I also link to a 1L law school video explainer.
    McBoyle video

    Shaffer also cites a case charged under 18 U.S.C. § 242, that itself relies on § 241 caselaw –Lanier (1997) — written by the liberal Souter for a UNANIMOUS Court, and is the case I’ve had in my head for WEEKs!

    I hate to be the spoiler for all those who feel the GA case is a vehicle to hold more than Trump accountable, but I feel obligated to raise these questions and have our thoughtful commentariet learn about and weigh in on some potential problems these cases have legally.

    Bmaz, Peterr, et al-
    -Are there grounds for a federal judge in GA to remove cases using equitable jurisdiction, or other means, and dismiss cases against any movant not put on notice in advance, based on Due Process grounds? Perhaps grounds that Jones’ supplemental briefing will justify, at least, in Meadows’ removal?
    – Can a GA court dismiss on (merely?) federal constitutional grounds, if GA Constitution has no similar provision or similar caselaw? (which, I assume, it must have)
    – How have previous GA RICO cases dealt with FAIR NOTICE, Rule of Lenity, Due Process issues?
    – There simply is no crime without intent! Or am I missing something here?

    Hoping you, or other of our weighty legal minds, will weigh in while Marcy enjoys a much needed, and belatedly deserved, vacation!

  17. Cosmo Lecat says:

    I think the prosecution should re-frame the question as whether a finding that any overt acts charged were NOT under the color of Meadows’ office, would that be sufficient to deny removal. Consider if part of a phone call is within the perimeter of his office, but then another part is criminal. As an analogy, consider whether a speed limit violator should be found innocent because part of the time the driver was under the speed limit?

    Also note that the judge’s question implies that Meadows will lose on his quest for absolute immunity, even if removal is granted.

      • Cosmo Lecat says:

        For context, the following sentence was deleted from my post: Federal Judge Jones, who is presiding over Meadows’ removal case, asked for briefing as to whether “a finding that at least one (but not all) of the overt acts charged under the color of Meadows’s office be sufficient for federal removal of a criminal prosecution.”

        My comment was a flip of his question. How would you reply to the Judge’s question if you were a party?

    • scroogemcduck says:

      Ignore the judge’s question and answer a completely different question? It’s certainly a bold strategy.

      • earlofhuntingdon says:

        A similar approach – refusing to answer the judge’s direct question, asked several times – got Lauro’s client in the J6 case a 4 March 2024 trial date, which wasn’t what he wanted.

  18. sohelpmedog says:

    To deny the motion for removal because in addition to a charge for conduct that is colorably with the federal officer’s duties would allow a state prosecutor to nullify the immunity statute by charging other acts clearly outside the federal officer’s duties. so it seems the answer to Judge Jone’s question should be yes.
    I think the decision on Meadows motion is not particularly critical. There are advantages and disadvantages to both sides. The makeup of the jury pool is probably of little consequence. The substantive law will be the same. The case may move faster in federal court, the judge may be a more able jurist and the strict limits on interlocutory appeals militates against defendants’ delay. The more interesting question I think is how granting Meadows’ motion will affect the other defendants, both those who also seek removal and those that don’t.

    • SteveBev says:


      ‘To deny the motion for removal because in addition to a charge for conduct that is colorably with the federal officer’s duties would allow a state prosecutor to nullify the immunity statute by charging other acts clearly outside the federal officer’s duties.’

      Is arguably to get that the wrong way round.

      The purpose of the statute is to protect federal officers acting under the colt of their office from undue interference. It is not to protect such officers from prosecution in State courts arising from conduct which is outside the scope of their office
      Removal is intended to protect the exercise of legitimate federal authority by government agents from interference by individual states. But courts have also identified a need to protect states’ authority and interests by limiting removal to situations in which a federal defense is applicable, hence, an additional requirement for removal.

      The Supreme Court has articulated the following principles that serve as a framework:

      A Operations of the federal government are undermined when federal agents who are “within the scope of their authority” can be arrested and brought to trial in state court for an alleged offense against the state.[2]
      B “No State government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it.”[3]
      C “Because the regulation of crime is preeminently a matter for the States, we have identified ‘a strong judicial policy against federal interference with state criminal proceedings.’”[4]

      Mess sets out the familiar test
      Although the test’s threshold is viewed as relatively low, not all cases justify removal, and where the state opposes removal and offers persuasive reasons for why Mesa is not satisfied, the burden is very much on the removing party to provide specific reasons as to why the test is met

      Although the statute is ‘liberally construed’… the Supreme Court has cautioned that its ‘broad language is not limitless.’”[8]

      All of which suggests (to me at least) that where the core conduct forming the basis is outside the scope of the tests as laid down ie that the defendant claiming removal is unable to satisfy the test, thus the claim is implausible, and the core conduct is clearly outside the scope of the protection then principles articulated above require State rather than Federal prosecution, a so fulfilling rather than nullifying the statute

  19. David Brooks says:

    Apologies if this has already been asked, but: as I understand it, the crux of Meadows’s defense is that he was acting in his official capacity by trying to dissuade Trump from interfering in State business, or at least pointing out that it was improper. Discounting whether the documentary evidence would support that claim, my question is whether that further pushes Trump under the bus (as a definitive claim that he was, indeed, intending to interfere in State business) and whether Meadows’s submission can be evidence in Trump’s case.

  20. haydnewp says:

    Lee Kovarsky at Lawfare:

    In the end, there might be less at stake to removal than many believe. The Fulton County and Atlanta Division jury pools aren’t that different, plus Trump and his co-defendants drew a federal judge who is likely to press the case forward. Still, the defendants’ removal arguments are not especially good, relying in at least some measure on a court’s willingness to indulge the fiction that Trump and his co-defendants were engaged in a coordinated election interference to protect the public interests of the United States—rather than to promote the private interests of Donald Trump. If the case does find its way into federal court, it won’t be because the defendants’ arguments on their underlying defenses are strong; it will be because courts are exercising the utmost caution.

    And because any conviction will be for a Georgia crime, the president does not have power to pardon, commute, or reprieve the sentence. Therefore, in the case of a second presidential victory, Trump will not be able to pardon himself.

  21. Overshire says:

    Link to Willis’ Motion to Clarify:
    On a layman’s reading, she seems to be asking the state Court to
    1 – clear up whether granting Chesebro’s speedy trial request was also meant to sever his trial from the other 18, since he hasn’t yet asked for severance, and to set a deadline for any others to do so, and
    2 – if not, at minimum, to please schedule Sidney Powell and any others who request speedy trial for the same date and, presumably, trial. But since it would be extra nice to try them all at once, can we just go ahead and speed-ify them all on Oct 23? Pretty please?

    • SF Al Coda says:

      Could this be a trap to force a speedy trial for everyone? It looks like the elements needed to support severance are not supportable.

      [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

      • bmaz says:

        You are going to determine severance without even a full application for it and hearing the support?

    • earlofhuntingdon says:

      Per Bower’s retelling, according to a Trump campaign lawyer, Kurt Hilbert, Meadows was on at least one call with him, Trump, and others to discuss Trump campaign litigation against the state of Georgia, “in his capacity as chief of staff.”

      That’s useful to the prosecution because Meadows’s presence is incompatible with any reasonable belief he was acting within the scope of his office. The call explicitly related to campaign, not govt, business.

      Meadows’s presence also vitiates a-c privilege relating to information discussed on that call, because he wasn’t part of the campaign management – the client – that had legal business to discuss with a campaign lawyer. He was an unrelated third party.

    • earlofhuntingdon says:

      Raffensperger’s tesitmony also seems to help the prosecution. He describes Meadows being on that call. At one point, the prosecutor,

      plays several excerpts from the [recorded] call. In one excerpt, Meadows raises the prospect of getting “access to the secretary of state’s data” to either validate or invalidate claims of election fraud.

      Who wanted that data? Cross [the prosecutor] asks. “The Trump campaign,” Raffensperger replies.

      That’s Meadows again doing obvious campaign work. For another, there were no credible claims of fraud in the Georgia election, and certainly not nearly 12,000 votes worth. Defense counsel tried to spin it as some form of law enforcement activity, an executive branch function. The prosecutor responded by asking Raffensperger, when LE investigates credible claims of election fraud, do you deliver data to one campaign or to the FBI agents investigating the alleged fraud. To the FBI agents, he responded.

      • scroogemcduck says:

        How widely the judge interprets the scope of Meadows’ duties as Chief of Staff will determine this. Meadows’ lawyers set out the position that he had an unlimited brief to get involved in any aspect of Government operations.

        • SteveBev says:

          The problem the judge appears to be wrestling with is how to determine the outcome, if he were to be satisfied that Terwilliger’s characterisation of the scope of Meadows role and duties is overbroad, but some part of the alleged misconduct could plausibly be argued as within the role even if it is possible (or even probable) that such an argument ultimately fails at trial.

        • BRUCE F COLE says:

          The obvious answer to that position is that Article II contains no role for the office of the President in the management or control of Presidential elections.

      • earlofhuntingdon says:

        Common exaggeration in journalism, probably encouraged or inserted by editors, who hate to publish something beyond the reading comprehension of a sixth grader.

  22. Susan says:

    Maybe the best song for Mark Meadows is Fool On The Hill

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You first commented quite some time ago as “susaninCO”; if you’re still in CO you may wish to revert to that username. Thanks. /~Rayne]

  23. SteveBev says:

    The cited case concerned a defendant who was called to give evidence on her own behalf at her criminal trial;
    “ 3. The defendant was sworn as a witness and testified in her own behalf. On cross examination she was asked by the district attorney if she could recognize the gun she used to shoot her husband. She answered: “That looks like it.” The defense counsel objected to the answer on the ground that his client “is being forced to give a self-incriminating statement … and I advise her that she doesn’t have to answer that question.” ”
    So the issue was whether she had given up her 5A rights within the particular proceedings and in respect of the scope of cross-examination of her.

    I question whether the removal proceedings are part of the criminal proceedings which follow either in Federal Court or in State Court.

    Aren’t they collateral civil proceedings?

    On this view Meadows evidence in these proceedings would be hearsay vis-a-vis any subsequent criminal proceedings, albeit parts may be admissible in evidence by virtue of exceptions to the hearsay rule.

    As ever I am an amateur observer so bow to those with greater knowledge; I hope I am raising intelligent points, but will happily accept criticism or correction.

    • bmaz says:

      I would certainly argue that, but things start to get complicated at this point. There is a process on issues like this, and it is not a new question. Generally, the 5th is only waived as to the specific points testified on civilly, but not as to anything else.

      • SteveBev says:

        Thanks for reply

        I have seen a lot of commentary suggesting Meadows has somehow waived all his 5A rights which I thought probably didn’t accurately reflect the nuances and complexities involved.

        BTW I seem to have triggered moderation on a few comments recently. This is not a complaint – far from it. I apologise for creating unnecessary work. It is not my intention to push the boundaries of community standards.

        • PJB2point0 says:

          The extent to which Meadows’ testimony may imperil his 5A rights at trial was something I was inquiring about yesterday based upon the same assumptions by the commentariat. In my practice, it is often the case that a decision has to be made about whether a witness will testify in an SEC enforcement investigation where it is suspected there may be a criminal referral in the offing or assert the fifth (and the adverse inference the SEC may then take) so as to fully protect the right of non-testimony at criminal trial. There is a substantial body of law on the issue in that civil to criminal context and it is complicated so I agree that the issue may well turn on whether the removal motion is part of the exact same criminal proceeding. It seems to me the issues about which Meadows has now testified substantially overlap that which he would face at trial. It may be complicated but I’d think there is a substantial chance Meadows may be held to have waived his 5A rights, in whole or in part.

          Unrelated (and probably inane) question for anyone. Why is removal to federal court necessary for Meadows to be able to assert his federal supremacy clause claim to dismiss the GA charges. Is a GA state court without jurisdiction somehow to entertain a motion to dismiss on such grounds? The same commentariat assumes that Meadows’ success in removal is a necessary precondition to moving to dismiss. Maybe it is, but I’m not knowledgeable enough to know why.

          • bmaz says:

            Because Fulton County is an absurd and hostile jurisdiction. Meadows would be insane to not file this in federal court. And, yeah, the “overlap” as to waiver is far beyond clear.

  24. Frank Probst says:

    Non-lawyer take on Jones’ request for additional briefings: It seems like he’s asking if there’s a reasonable way to cut the baby in half, and obviously, there isn’t. That seems like it should clear the bar for removal, since Jones would preside, and he already thinks that SOME of Meadow’s behavior MAY have been part of official duties under the color of office.

    I don’t know how I’d respond if I were either the prosecutors or the defense, though. The prosecutors don’t want to have any part of their case thrown out, and they’d have to start their argument assuming a partial loss. The defense has to figure out how argue that the case should be removed even if only some of the behavior is covered. The part that’s left unsaid is that the judge probably thinks that some of the behavior is NOT covered, which means a subsequent motion to dismiss would probably fail even with a successful removal. I wouldn’t want to be a lawyer arguing on either side here.

    • Tech Support says:

      Something that is also true in non-legal situations is that when you’ve got a complicated evaluation with a variety of applicable criteria, it is sometimes necessary to take a step back. Instead of trying to holistically address the entire beast, you sift for some specific pass/fail criteria whose outcome renders all the other considerations irrelevant. Seems like that’s what Jones is doing here and that certainly dovetails with his “low bar” remark.

      I’d guess that the specific act which Jones has selected is the one (out of all similar acts) Jones believes is most favorable to the defense’s argument. If DA Willis can prevail here, it would clear deck for Jones to avoid a bunch of “well, what about THIS one” follow-up motions.

      Based on all the prior dialog it seems to me that it’s critical for the prosecution to draw a bright line between campaign activities and actual federal duties. Going all the way back to the, “is Mark Meadows a big dummy” question, I think if you can demonstrate his fundamental failure to understand the distinction, it really weakens his position here.

      IMO, Fulton County should want to argue this point because this distinction between campaign and official responsibilities seems central to Meadows’s liability.

  25. The Old Redneck says:

    It seems Meadows is going all in on the “just doing my job coordinating things for the President” defense. It’s a pretty audacious gamble: waiving your 5th Amendment rights because you believe that explanation will save you from getting convicted. And he may have already screwed it up by effectively admitting he called about the audit on behalf of the campaign.
    My guess, and it’s purely a guess, is that the case is going to get removed because at least some of his conduct was undertaken in his capacity as a federal officer. But if he gets a change of courthouses from state to federal, that’s a pretty limited victory. It is not a guarantee he’ll ultimately dodge the bullet on the charges. And he may have already blundered by testifying at length about some pretty damning stuff.

  26. RMD DePlume says:

    OT: disappointing to read how the NYT continues to use sloppy/imprecise and/or incomplete summary of pending charges w trump…

    He is facing bookkeeping fraud charges in New York [..]. He is set to go on trial in Florida on federal charges related to his hoarding of sensitive national-security documents after leaving office. And he has been charged in another 2020 election case in Georgia […]

    [SECOND REQUEST: Please use the same username each time you comment so that community members get to know you. You had changed your name to “RMD de Plume” on July 15; you commented as “RMD dePlume” 3X on 8/10 which I fixed this once. Today you’ve commented as “RMD DePlume” which is yet another username as both letter case space makes a difference. You have a comment in Moderation which I will clear this one but for gods’ sake use the same name each time or you’ll be in perma-moderation. /~Rayne]

    • earlofhuntingdon says:

      Source? Even by NYT standards, those are remarkably lame descriptions.

      “Bookkeeping,” for serious financial fraud? “Hoarding” of national security documents? Is the NYT describing Adrian Monk’s brother? A simple “charged” in “another” election case, as if it were a routine consequence in today’s politics? Nothing about what it means to be charged with all of these together. Who wrote it, Peter Baker?

    • RMD dePlume says:

      Sorry Rayne. I appreciate all your efforts. I will stick with the July 15 required name to include 8 or more letters.(RMD de Plume) Thanks.

      [You realize in the body of your comment you’ve typed a version which doesn’t match the one you used? *sigh* /~Rayne]

      • RMD de Plume says:

        Oh my god, I know! I quickly tried to ‘edit’ and noticed I no longer have that option…and tried to apologize. Having a rough week…. sorry.
        I think I’ve got it now….

  27. bloopie2 says:

    More of theses folks making the news: Per CNBC, “A federal judge on Wednesday issued a default judgment against former Trump lawyer Rudy Giuliani and ordered him to pay sanctions of nearly $133,000 in a civil conspiracy lawsuit by two Georgia election workers he had claimed mishandled ballots in the 2020 presidential contest.” What’s up with Rudy?

    • SteveBev says:

      “Just as taking shortcuts to win an election carries risks — even potential criminal liability — bypassing the discovery process carries serious sanctions,” Howell wrote.

    • hollywood says:

      Rudy is out of it. Either he just doesn’t care, or he is banking on appeal. So he would have to go to the DC Circuit (good luck there) or ultimately SCOTUS (even winning there–if he does–his fees are gonna be huge).

    • ButteredToast says:

      What’s up with Rudy?

      That is indeed the question—from before he was mayor, though becoming more salient with time.

    • earlofhuntingdon says:

      Rudy was always a shit; his propaganda just isn’t keeping up with it now. I suspect he is at the end of his rope. He’s running out of brains and stamina; money and the ability to raise it; and patrons and legal excuses. And he’s inundated with claims against him.

      Sadly for him, that makes him a loser in Trump’s eyes, which means he is never gonna pay him whatever Rudy thinks he’s owed. Trump must hope that Rudy’s ability to hurt him is as compromised as his credibility.

    • Tech Support says:

      Rudy knows that he can avoid some financial penalties by filing for bankruptcy but that doesn’t do anything for jail time.

      • bmaz says:

        Ahem, let’s take a step back from this. BK law is nowhere near that simple, and criminal law nowhere near that. Chill out and let the courts deal with it.

  28. earlofhuntingdon says:

    As usual, Rudy Giuliani is managing his troubles well. Not. Judge Beryl Howell entered a default judgment against him for serious delay and for persistently not complying with normal discovery requirements in the defamation case against him, filed by two election workers from Georgia. That Giuliani conceded earlier that he made false claims against them might have helped Howell make that decision.

    Rudy is probably drinking heavily, which would make rational decision making hard. But his concession virtually guaranteed that he wold lose this case. But his refusal to provide discovery makes one wonder how much more damaging it would have been for him and others had he provided that discovery.

      • Just Some Guy says:

        Selling a pricey Upper East Side co-op doesn’t seem like a move someone would rationally make before declaring bankruptcy, but then neither does conceding you’ve made false claims during an ongoing defamation lawsuit!

    • SteveBev says:

      Full judgment here

      Rudy produced 2 sets of stipulations, each hedged with carve outs. He was forced by the court to produce the 2nd after the first “puzzling set of stipulations” were held to be inadequate. The 2nd were deemed equally puzzling, for the same reason. Insofar as he sought to use them as devices to further avoid the continuing failure to comply with discovery obligations “that was a misfire”
      The repeated history of his misconduct in the litigation has resulted in a default judgment to be entered, and not judgement based on his stipulations, plus further sanctions in terms of payments of attorney fees, contempt sanctions for noncompliance with the existing sanctions order to commence from 30 September if he has not paid both sets, and mandatory jury instructions regarding his deliberate concealing of his wealth from the court in order to conceal his ability to pay punitive damages, though should he comply with discovery re his wealth by a given date the jury instructions as to inference s Will be “may” rather than “must”

      She even cited the private jet to Fulton county as evidence of his high living.

        • SteveBev says:

          No indeed not

          Yet he and his acolytes continue to double down on “the FBI wiped my devices” conspiracy explanation for his predicament over discovery, even though the Judge Howell comprehensively disposes of that excuse.

          “Ted Goodman, a political advisor to Giuliani, echoed that point Wednesday, calling the ruling “a prime example of the weaponization of our justice system, where the process is the punishment.”

          “This decision should be reversed, as Mayor Giuliani is wrongly accused of not preserving electronic evidence that was seized and held by the FBI,” Goodman said.”

          This is madness on stilts.

          • earlofhuntingdon says:

            Admitting reality is the kiss of death in Trump and Maga World.

            Rudy gave Howell so much to work with, her 57-page opinion will never be reversed on appeal. Justice for the plaintiffs will revolve around collecting what is likely to be a seven-figure judgment for damages, especially as Rudy is unlikely to improve his compliance with the court’s orders.

            • SteveBev says:

              She nailed down absolutely everything.
              Every single opportunity to comply, every grace period, every opportunity to contest or explain factual findings adverse to him, every concession he made, every evasion and prevarication.

              It is like watching a taxidermist at work.He has been eviscerated stuffed stitched and mounted.

          • earlofhuntingdon says:

            Goodman forgot to mention that the FBI returned those devices to Rudy over a year ago, which might, um, have allowed him to sort through them and produce the discovery he was obligated to provide.

            I would love to hear the FBI’s response to Rudy’s claim that they wiped the devices he gave to them, which they, presumably, examined. Even assuming that were true, unlikely, Rudy’s response ignores whether those devices were backed up.

            Rudy’s overall response to discovery was, I’m not giving you any. Howell gave him more than enough time to hang himself. He did. But was he covering for himself or other people?

            • SteveBev says:

              Her phrasing to the effect (I don’t recall the exact expression ) that one might conclude he was deliberately avoiding his discovery obligations as part of a litigation strategy in the face of multiple lawsuits was masterful piece of wry understatement.

              • SteveBev says:

                “Perhaps he has made the calculation that his overall litigation risks are minimized by not complying with his discovery obligations in this case”


  29. CPtight617 says:

    Attorneys Norm Eisen, Joshua Kolb and Andrew Warren offer an unsolicited amicus on Just Security saying Meadows is not entitled to removal. A choice excerpt…

    The court in Cooper says that “a single such ingredient” of “federal character” “is sufficient” to take the case into federal court; it does not say that such a single federal act would make it “necessary” to remove the entire case to federal court. Therefore under Cooper, if removal is fully satisfied for the charged or alleged conduct, then the fact that there were also nonfederal questions does not keep it from being removed. It does not follow from Cooper that any one overt act being under color of Meadows’s office would necessarily paint all of the charged conduct with its federal brush and force the entire case into federal court. Indeed, Cooper stands for the simple proposition that the federal court would need a wholly federal matter – here all three parts of the Mesa test satisfied, not a simple alleged act alone – which would naturally be sufficient for federal jurisdiction, and then to consider whether other pendent questions can be included. As such, Cooper cannot provide a justification for creating federal jurisdiction for Meadows.

    • bmaz says:

      Unsolicited “briefs” from Norm Eisen and Just Security are uniformly garbage. Just fucking jokes from people that ought STFU. Please spare us any more “choice excerpts” from that crap.

      • obsessed says:

        Norm Eisen may be a joke, and/or the above-cited passage from the justsecurity article may be crap, but can you tell us why? It seems to say that the “single federal ingredient”, while it could take the case to federal court, doesn’t *require* it to be taken to federal court and that since it doesn’t have to be removed to federal court, the arguments for keeping it in state court are more persuasive. Are you saying that the single ingredient *does* make it necessary? Or are you saying that even though it’s not not necessary, it should still be removed for other reasons?

        Right now, we’ve got this Eisen argument on one hand and “bmaz says it’s a joke” on the other. We’re descending into “my big brother can kick your big brother’s butt” territory. Why, in general or in this argument specifically, should we dismiss Norm Eisen?

        • P J Evans says:

          bmaz doesn’t like lawyers who go on TV, even when they’re talking law. And he doesn’t seem to like a lot of lawyers, in general.

          • scroogemcduck says:

            TV lawyers, particularly law professors, have a tendency to say what they believe the law ought to be, not what the case law says the law actually is. They also fail to point out where a particular area of law is poorly developed and there is uncertainty on how a judge might rule.

            • Tech Support says:

              Being wrapped around the axle on the way things “should” be is a common affliction in technology circles as well.

          • earlofhuntingdon says:

            It’s more likely he doesn’t like what they say on TV. Jonathan Turley claims to be talking law, for example, even when he’s talking out of his ass.

          • wasD4v1d says:

            I think it would be fair to say that tv lawyering is show business. The line between useful information and entertainment is blurry. A tv lawyer’s solipsism is never tested in front of judge, jury, or opposition.

        • SteveBev says:

          I think the point referred to above which Eisen et al are attempting to make is this:

          Cooper case stands for the proposition : that a single act apparently with the scope of a federal officer’s duty amongst the set of acts in the State charges is sufficient for the first stage of the invocation of Federal jurisdiction to remove ie enough to get over the first hurdle and justify the ordering of an evidentiary hearing.

          The purpose of that hearing, they say, is to determine whether the graveman of the alleged criminal conduct satisfies the 3 prong test in the Mesa case; and Cooper case, on a proper reading, has nothing to say about how •this• test is fulfilled.

          I don’t think that their explanation was particularly clearly set out

          This is but one of what they claim are several independent points each of which they say leads to the same conclusion.

          It may be my fault, but their points actually seemed interrelated or at least overlapping.

          This area seems to have a lot of fine nuances which have to be negotiated. I am not sure that their method of exposition at all times aides the reader in grasping their positions. So that makes it harder to accept their analysis is as useful in negotiating the complexity of decision making in this area as their headline makes it seem.

          But what do I know?

        • bmaz says:

          Yeah? Well, I have read every one of your ten comments here, under both of your claimed names, Mr. “FishStix Fascist”, and you can get the fuck out.

  30. Overshire says:

    A question that came up in conversation with my spouse last night:
    The GA RICO law only requires the gov’t to prove any two of the overt criminal acts against the collective 19 defendants to satisfy the both existence and guilt of the entire criminal enterprise. If Chesebro and Powell both get the speedy trial they’ve asked for, and are found guilty of two of those applicable acts, does that not logically mean the other 17 will be walking into their eventual trial having already been found guilty on the RICO charge? There seems to be a fairly major disconnect in either the law or my brain. History favors my brain for the location, but I’m having trouble proving it.

    • scroogemcduck says:

      There will be a jury verdict finding that there was a criminal enterprise. I don’t know if that is admissible for consideration by the jury in a subsequent trial of other co-defendants as I’m NAL, but would be surprised if it was excluded.

      • SteveBev says:

        In English law there is a specific provision applicable when there are severed trials involved alleged Co-conspirators. It provides that the conviction of defendants in the first trial to take place is admissible in subsequent trials of alleged Co conspirators as evidence to prove the existence of that conspiracy,

        I don’t know whether Georgia or Federal evidence rules have comparable provisions.

        • Overshire says:

          Thanks, both of you. That’s what I’d expect, but when the DA noted that speedy trial had been granted but severance hadn’t been mentioned, then separate-but-not-severed might be possible, and alarms went off.

    • bmaz says:

      Good grief, PLEASE do NOT do this. The GA RICO statute is stupidly over broad and not the equivalent of the federal RICO statute or application, nor that of any other state I am aware of. If you cheer this, you are a fool. When we started this blog, the hot topics were massive unwarranted surveillance and unconscionable torture. Well, wake up, this kind of idiotic application of RICO laws, especially aberrant ones like is possible in Georgia, are exactly that bad. Only idiots would cheer that, and then RICO will come for them. This is precisely what Trump Derangement Syndrome brings when fools bite off on it.

      • ButteredToast says:

        I respect your opinion about the Georgia RICO statute. However–and I realize the risk of provoking an angry response–why do you use the label “Trump Derangement Syndrome?” Every single other place I’ve seen this particular phrase, it’s a rightwing talking point thrown out when someone expresses the idea that Trump is more corrupt than the average politician, or that he should face accountability.

      • Overshire says:

        I was questioning what felt like a stupid idea, not cheering for it. At the time, no one had asked to have their case severed, just accelerated, so it seemed like a legally stupid, but possible unintended consequence of law that might allow separate but not severed trials. Now that they’ve both filed to sever (per CNN,) the question goes away.

      • SaltinWound says:

        Not sure if this is “apples to apples” but it’s concerning that the AG of Alabama is talking about prosecuting people who help someone get an out-of-state abortion as a criminal conspiracy.

  31. scroogemcduck says:

    DeOliveira has filed his opposition to a Garcia hearing in SD Florida. Basically he goes through the motions of opposing but is really accepting that there will be a hearing and asking for it to be heard ex parte and under seal.

  32. Matt Foley says:

    Off topic about Mark Meadows:
    Whatever became of Meadows’ criminal referral of Michael Cohen’s allegedly not reporting his foreign contracts? MAGA media made a huge deal over this in 2019 then I heard not a peep.

  33. Rugger_9 says:

    OT, but I see Ted Cruz was ranting about the so-called ‘two beer’ rule which for the bulk of America is totally fabricated.

    Where that rule is true is in the USN, officially dry on board the ships for over 100 years with one exception: after 45 straight days at sea you get two (2) beers. I had this experience on the USS California (CGN-36) on our 88-89 Westpac and the two cans of Fosters (thanks, Captain Burrows for a good choice) was quite sufficient for a decent buzz.

      • Rugger_9 says:

        Alas, no. Just the 12-ouncers. Other ships had Bud and Coors according to the scuttlebutt, which seems kind of a waste.

          • earlofhuntingdon says:

            Foster’s once had an ad campaign that compared Australian items to their normal counterparts, in an exaggerated, Texas sort of way. One was a 15-inch Bowie knife that was meant to be Australian for toothpick. The punchline, of course, was that Foster’s was Australian for beer.

    • Tech Support says:

      Once worked with a guy who had dual US/Australian citizenship (and was, incidentally, the #2 ranked American BASE jumper at the time). Being in the microbrew-obsessed PNW I asked him his opinion on Fosters as a non-beer drinker. His response was:

      “Fosters. Australian for Coors.”

      • earlofhuntingdon says:

        Yep, non-descript lager, but good on a hot summer day with a healthy dose of lemon-lime soda. Not an arresting flavor one would find in a good ale or bitter. But that’s not what it’s aiming for.

  34. Savage Librarian says:


    Blue Moon
    You saw me without backbone
    With every scheme in my heart
    A lout with self-love in my zone

    Blue Moon
    You knew just what I was there for
    You heard me calling naysayers for
    Someone I’d overbear for

    And then there suddenly
    appeared before me
    The only one alarms foretold
    I heard somebody whisper
    “Don’t ignore me,”
    And when I looked,
    the moon had since been rolled

    Blue moon
    My conscience is still ingrown
    And with the schemes in my heart
    I’m still without my backbone

    “Four Seasons – Blue Moon”

  35. SteveBev says:

    Joe Biggs – 17 years

    Our Constitution and laws give you so many important rights that Americans have fought and died for and that you yourself put on a uniform to defend,” District Judge Timothy Kelly said in handing down the sentence. “People around the world would give anything for these rights.”
    But January 6, 2021, Kelly said, “broke our tradition of the peaceful transferring of power” in the United States.

    “The nature of the constitutional moment we were in that day is something that is so sensitive that it deserves a significant sentence,” he said.

    Biggs, Kelly ruled earlier in the hearing Thursday, was subject to harsher sentencing penalties for domestic terrorism because he ripped down a fence on Capitol grounds during the riot that separated law enforcement officers from the mob, taking the mob one step closer to breaching the Capitol.

    saying that he did not want to “minimize the violence that did occur” during the Capitol attack, but that he had to be conscious of what other people have been sentenced to for conduct related to January 6, 2021 as to not create large or unwarranted disparities.

    • SteveBev says:

      Despite applying the terrorism enhancement to Biggs, Kelly agreed that enhancement “overstates” Biggs’ conduct.

      “It’s not my job to label you a terrorist and my sentence today won’t do that, no matter what it is,” he told Biggs before delivering the sentence.

  36. timbozone says:


    Sydney Powell’s filing for a speedy trial contains some serious fools gold!


    My favorite one early on is “Sidney Powell has been practicing law for forty-five years in the highest traditions of the Bar.” I mean, if you’re going to put this in writing in a Superior Court Filing, go big? This is soon quickly followed up by another sad hook—”By ten years later…” Yeah, by that point, 20 seconds in to reading the motion, I was ready to give up! Ah, to be a fly in the judge’s chambers when he or she has to wade through this mess…I mean, they should wade through it all, right, just to be sure there isn’t any crazy admissions or other obviously “high” speculation upon facts contained therein before granting a speedy trial to Sidney Powell, Esq.

    • earlofhuntingdon says:

      Perhaps she meant Texas Bar, if its Supreme Court and Court of Criminal Appeals are any guide.

  37. SteveBev says:

    Rehl 15 years

    Kelly say it is a serious sentence, then remarks: “I probably never in my life will approach this: this was 15 years below guidelines and 15 years below what govt requested. I wonder if I will ever sentence someone to 15 years below the guidelines in my career.”

    • Frank Probst says:

      Has anyone written a good legal analysis of the two briefings yet? My non-lawyer take is:

      Meadows: Yes, the case should be removed if some but not all of Meadows’ acts were found to be done under color of office as a Federal Official, because you can’t mix legal and non-legal acts into the same pot and still keep the charges in state court.

      Willis: No, it shouldn’t. The Willis briefing focuses largely on the GA RICO law narrowly and on concept of entering into a conspiracy generally. Entering into a conspiracy is the crime here. If even a single act falls outside the color of office and shows that he entered into a conspiracy, then he’s guilty of violating the GA RICO law. Additional overt acts, EVEN IF LEGAL, can be used as evidence of the crime and would NOT require removal to a Federal court.

      For good measure, Willis points out an instance where Meadows made a false statement during his testimony to Judge Jones–and was eventually forced to concede that it was false–about an act that would put him on the hook for a GA RICO charge in state court.

      MY ANALYSIS: I have no fucking idea if I’m even close to reading these things correctly, but they seem to be so different that I can’t tell whose argument makes any sense. Meadows’ brief is an expansive viewpoint of what the law requires. Willis’ brief is much more granular, and it was obviously written by someone who knows the GA RICO law and and kept their argument much narrower, focusing on how entering into a conspiracy is what puts you on the hook for a GA RICO violation.

      @bmaz Am I even close to understanding this?

      • bmaz says:

        There is nothing, and I mean nothing, “narrow” about the Georgia RICO law that the Fulton County prosecutor(s) routinely try to bludgeon defendants with.

    • Konny_2022 says:

      Might well be the case. The list of docket entries contains this:

      Aug 31, 2023

      SYSTEM ENTRY – Docket Entry 138 restricted/sealed until further notice. (amb)

    • bmaz says:

      What a load of shit. Why did they not just do an internet petition? Also, too, we have already been over this garbage previously. Probably in this thread.

      • c-i-v-i-l says:

        No, you haven’t discussed it in this thread; I checked before posting it, and had you done so, I wouldn’t have posted it. I don’t know whether you’ve discussed it elsewhere, nor am I going to hunt through all threads before posting a link to an amicus brief. As is your wont, you say that it’s “a load of shit” without saying why you think that / where you think their argument is weak.

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