The Federalism that Mark Meadows Wants the 11th Circuit to Reverse

Mark Meadows immediately appealed the decision Judge Steve Jones issued Friday not to remove the Georgia prosecution of the former White House Chief of Staff to federal court, so the decision will not be final until at least one right wing court has had a chance to reverse it.

The most important decision from the 11th Circuit and SCOTUS in the meantime will be whether to stay the proceedings in Georgia as this appeal goes forward, which is not supposed to happen under removal, but the appeals courts may view the appeal as something different procedurally.

For now, then, I want to map out how Jones unwound the difficult issues of federalism and separation of powers to get to his decision, because they lie at the core of both January 6-related prosecutions of Trump. This is a decision that weighs the supremacy of federalism over the state, the reservation to states to conduct elections, and the separation of powers between the executive and the legislative. Meadows’ appeal is likely to be the second or third time SCOTUS gets to weigh in on Trump’s conduct on January 6 (the first being his attempt to use Executive Privilege to prevent the Archives from sharing documents with the January 6 Committee, another being appeals of the civil lawsuits out of DC), so the logic Jones applied here may influence later criminal proceedings against Trump and others.

After laying out that 28 U.S.C. § 1442(a)(1) is one exception to the precedent that the federal government does not intervene in state prosecutions, Judge Jones noted that the standard for removal is low. Meadows doesn’t need to prove his case; he needs to prove that the prosecution is “closely connected with” his role as a federal officer.

The Supreme Court has cautioned that “an airtight case on the merits in order to show the required causal connection” is not required and that courts are to “credit” the movant’s “theory of the case” for the elements of the jurisdictional inquiry.5 Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999). “The point is only that the officer should have to identify as the gravamen of the suit an act that was, if not required by, at least closely connected with, the performance of his official duties.” Id. at 447 (Scalia, J., dissenting).

Having acknowledged the standard is low, Jones nevertheless found that Meadows had not met that bar, because the actions he is accused of taking as part of the RICO conspiracy served the ultimate goal of affecting state election activities and procedures on behalf of the Trump campaign.

The Court concludes that Meadows has not met even the “quite low” threshold for removal. Again, what the Court must decide for purposes of federal officer removal is whether the actions Meadows took as a participant in the alleged enterprise (the charged conduct) were related to his federal role as White House Chief of Staff. The evidence adduced at the hearing establishes that the actions at the heart of the State’s charges against Meadows were taken on behalf of the Trump campaign with an ultimate goal of affecting state election activities and procedures. Meadows himself testified that working for the Trump campaign would be outside the scope of a White House Chief of Staff. Hearing Tr. 113:2–6.

Based on this formula — that Meadows’ activities were taken on behalf of the Trump campaign with the goal of affecting state election activities — Jones distinguished Meadows’ activities from his job as Chief of Staff in two ways.

First, while Meadows made expansive claims about his role as Chief of Staff that he attempted to use to claim he had to set up the meetings Trump had with Georgia (and other state) officials, Jones noted that both sides agreed the Hatch Act prohibited White House employees, including Meadows, from using his official position to engage in election activity.

Meadows also testified that as White House Chief of Staff he was bound by the Hatch Act11 and he could not engage in political activity. Hearing Tr. 39:7– 25; 135:21–136:5. As discussed more fully below, the Hatch Act prohibits “an employee” from “us[ing] his official authority or influence for the purpose of affecting the result of an election.” 5 U.S.C. § 2732(a)(1). This includes, “[u]sing his or her official title while participating in political activity.” 5 C.F.R. § 734.302(b)(2). And political activity is defined as, “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Id. § 734.101.

The Court finds that the color of the Office of the White House Chief of Staff did not include working with or working for the Trump campaign, except for simply coordinating the President’s schedule, traveling with the President to his campaign events, and redirecting communications to the campaign. Thus, consistent with his testimony and the federal statutes and regulations, engaging in political activities is exceeds the outer limits of the Office of the White House Chief of Staff.

[snip]

When questioned about the scope of his authority, Meadows was unable to explain the limits of his authority, other than his inability to stump for the President or work onbehalf of the campaign. Hearing Tr. 111:12–113:6. The Court finds that Meadows did not adequately convey the outer limits of his authority, and thus, the Court gives that testimony less weight.12

12 In this case, Meadows was the main witness presenting testimony for his case. Thus, the Court must determine the appropriate amount of weight to assign to his testimony when evaluating it, the same as it does any other witness in an evidentiary hearing. However, given the nature of the motion, and the pending criminal proceedings the Court makes these decisions with great caution. The determinations here do not go to Meadows’s propensity to be truthful as a general matter. However, the Court cannot undertake the task assigned by 28 U.S.C. § 1455(b)(5) without assigning the appropriate weight to the testimony.

[snip]

The Hatch Act prohibits executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election[.]” 5 U.S.C. § 7323(a)(1). The federal regulation governing political activities of federal employees prohibits the same. 5 C.F.R. § 734.302(a). The regulation, moreover, broadly defines “political activity” to be “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Id. § 734.101. The types of behaviors that Meadows is alleged to be involved in included post-election activities and election outcomes in various States pertaining to a particular candidate for office. If these potentially political activities indeed come against the Hatch Act, its regulations limit such efforts. These prohibitions on executive branch employees (including the White House Chief of Staff) reinforce the Court’s conclusion that Meadows has not shown how his actions relate to the scope of his federal executive branch office. Federal officer removal is thereby inapposite. [my emphasis]

Meadows had tried to argue that the overt acts accuse him of nothing more than those permitted activities, organizing Trump’s schedule and redirecting communications to the campaign. But Jones only bought that argument in the context of one of the overt acts attributed to Meadows (getting a phone number from Scott Perry). For the rest, Jones ruled that Meadows was engaged in activities for the campaign.

The Hatch Act doesn’t apply to the President and Vice President. So if Jones’ ruling relied exclusively on the application of the Hatch Act, it would have no relevance for Trump.

But Jones also relied on the Elections Clause of the Constitution that reserves the conduct of elections to the states.

The Constitution does not provide any basis for executive branch involvement with State election and post-election procedures. The Elections Clause expressly reserves the “Times, Places, and Manner” of elections to state legislatures. U.S. Const. art. I, § 4, cl. 1; see also Shelby Cnty. v. Holder 570 U.S. 529, 543 (2013) (“[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” (quoting Gregory v. Ashcroft, 501 U.S. 452, 461–62 (1991)); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995) (“[T]he Framers understood the Elections Clause as a grant of authority [to state legislatures] to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”). States have been tasked under the Elections Clause to “provide a complete code” for elections which ought to include “regulations ‘relat[ing] to . . . prevention of fraud and corrupt practices [and] counting of votes . . . .’” Moore v. Harper, 600 U.S. —-, 143 S. Ct. 2065, 2085 (2023) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). This is not a power incident to a State’s police powers but “derives from an express grant in the Constitution.” Fish v. Kobach, 840 F.3d 710, 727 (10th Cir. 2016).

[snip]

Thus, the executive branch cannot claim power to involve itself in States’ election procedures when the Constitution clearly grants the States the power to manage elections under the Elections Clause. [my emphasis]

Note that Jones relied on both Shelby County (rejecting part of the Voting Rights Act) and Moore v. Harper (rejecting the Independent State Legislature theory) in this passage, both opinions authored by Chief Justice Roberts and the more recent one joined by Justices Kavanaugh and Barrett. There’s nothing controversial or surprising about this. But in both cases, there’s fierce Republican support at SCOTUS for the states’ authority in conducting their own elections — on paper, at least, even more fiercely among SCOTUS’ more radical right wing members.

Meadows’ appeal will have to argue positions directly the reverse of those that the Trump campaign floated during the campaign.

Meadows had tried to invoke two other bases for the White House Chief of Staff to butt into state elections: the Take Care Clause and the executive’s ability to offer advice to Congress.

13 The only potential constitutional authority, the Take Care Clause, does not enable the type of election oversight to which the State’s Indictment pertains. See U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed[.]”). Yet, executive authority under the Take Care Clause “does not extend to government officials over whom [the Executive] has no power or control.” Thompson v. Trump, 590 F. Supp. 3d 46, 78 (D.D.C. 2022). The Court accordingly rejects Meadows’s suggestion that the Take Care Clause provides a basis for finding executive authority over state election procedures. Doc. No. [45], 9–10.

The Court is also unpersuaded by Meadows’s contention that his acts involving state election procedures are within executive power to advise Congress. Doc. No. [45], 10. It would be inconsistent with federalism and the separation of powers, to find that activities which are delegated to the states are also within the scope of executive power because the executive branch may advise Congress. Cf. Fish, 840 F.3d at 725–26 (“The [Elections] Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices.” (quoting Foster, 522 U.S. at 69). The Court will not find that the executive branch has some advisory authority in this space in light of the express constitutional grant over elections to the States.

But here, too, Jones noted that the executive simply had no role here.

Here’s how this analysis works in practice, as Jones applied it to Meadows’ visit to Cobb County to monitor the vote count.

Similarly, Overt Act 92 alleges that Meadows traveled to Cobb County, Georgia where he “attempted to observe the signature match audit being performed there by law enforcement officers from the Georgia Bureau of Investigations and the Office of the Georgia Secretary of State.” Doc. No. [1-1], 44. Meadows testified that his actions with respect to this allegation were:

in line with [his duties], because what I did was go to the Cobb County convention center to look at the process that they were going through. And in doing so was trying to, again, check that box to say, all right, everything is being done right here, and so if there’s allegations of fraud, we need to move on to something else.

Hearing Tr. 152:4–17. The Court factually finds that Meadows overseeing State election recount processes related to President Trump’s reelection campaign. Meadows failed to provide sufficient evidence that these actions related to any legitimate purpose of the executive branch. Accordingly, the Court finds Meadows has not met his burden in establishing that Overt Act 92 is related to scope of the Office of White House Chief of Staff.

The executive has no role in such vote counts. And so the only purpose for Meadows to observe the count was on behalf of Trump’s campaign.

As Trump’s federal prosecution proceeds, there will be (and has been, in appellate consideration of the application of the 18 USC 1512(c)(2) to the vote certification) similar analysis about the Electoral College Act that reserves certain roles to Congress, not the executive. In his post-election activities, Trump (and Meadows) were simply intervening in one of the few areas where, thus far, judges have ruled that the executive has no role.

The analysis will be different for Jeffrey Clark because DOJ — but not its civil division — does have a role in investigating any federal election crime. Georgia has focused their response to Clark’s bid to remove his prosecution by presenting the testimony of the people who were in charge at DOJ, who slapped down Clark’s intervention.

But as to Meadows, Judge Jones has found that the things he did to intervene in Georgia’s elections on Trump’s behalf had no valid federal purpose.

Update: Meadows has asked Judge Jones for a stay, not (yet) the 11th Circuit.

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123 replies
  1. bloopie2 says:

    Nice analysis and summary, thank you; I started reading it last night and gave up.

    “because what I did was go to the Cobb County convention center to look at the process that they were going through. And in doing so was trying to, again, check that box to say, all right, everything is being done right here, and so if there’s allegations of fraud, we need to move on to something else.”

    If that’s the best that Meadows can offer, in terms of “this was an official USG action”, that’s quite poor. Certainly a Chief of Staff can investigate an alleged issue that the President (or the Executive Branch) may need to get involved in; determine that there’s nothing going on; and tell the President, “No, nothing to do here, move on to your next official task”. That’s fine – his job is to keep the President going, from one official task to the next.

    But here: (1) The election process is a State task, not a Federal one. (2) There’s a 99.44% more likely motive for Meadows’ actions than keeping the President on task with his official duties: The reelection campaign. Jones I think has a winner here.

    • emptywheel says:

      Right, and ultimately there is no purpose for the Executive in the matters at issue. That has been the consistent refrain in 1512 cases in DC, and that’s true here.

      And since Trump’s conduct is so much more obviously self-interested that should be prohibitive for him, too. Which may be why his team waited to see how Meadows’ challenge came out.

      • BlueMeme says:

        I still don’t understand the argument that Meadows had a better claim to removal than Trump does. Aren’t all of a Chief of Staff’s powers and duties derivative of those the POTUS they serve? How can a subordinate have greater relevant “official duties” than his principal? And doesn’t that go double if you buy into the unitary executive theory?

        [Welcome (back?) to emptywheel. I need to know if you are the same person who commented as “Blue Meme” at this comment in 2019. If you are not, you need a more unique username with a minimum of 8 letters before you can comment again. Thanks. /~Rayne]

        • Unabogie says:

          I think it comes down to the idea that a CoS routinely sets up calls and meetings between a president and governors, congresspersons, and state representatives. That’s part of the job. So in that light, why would it be out of scope to set up a call to the SoS of a state?

          The ruling says that the purpose of the call matters, and the purpose served no legitimate purpose of Trump’s office. It was instead wholly a campaign purpose, and therefore Meadows can’t claim it was part of his job.

        • earlofhuntingdon says:

          Depends on the substance or point of all those calls and meetings. Many of them are expressly personal and political, which might be why the President and VP are outside the reach of Hatch Act prohibitions. But the CoS is within its reach. As Judge Jones argued, the issue is not whether Meadows violated the Hatch Act, but whether he acted in a personal or executive branch officer capacity.

          A normal CoS does a lot more than Meadows appeared to do. They manage the President’s schedule and who has access to him. They are, in effect, the second most important person in the White House. Might be one reason they have Cabinet rank.

          Trump, however, is notorious for not distinguishing personal from professional wants. He tends not to employ anyone who makes those distinctions. But that doesn’t make everything the CoS does a valid exercise of executive branch authority.

        • earlofhuntingdon says:

          Meadows wears two hats: personal aide to the person of the president and an officer of the executive branch. To comply with the Hatch Act, he has to separate where and how he does them. The President is not subject to HA sanctions, but he wears two hats, too.

        • Steve_R_ says:

          Agreed, and I’m guessing Dershowitz is the only lawyer out there who is shameless enough to argue that Trump’s efforts to seek reelection somehow fall within his “duties.”

  2. JonathanW says:

    Am I correct in assuming that Judge Jones, in quoting SCOTUS decisions that were decided by the right wing majority is attempting to ensure that, should there be an 11th Circuit panel that is heavy on right wing judges, his decision won’t be overruled? I guess I kind of have an assumption that district court judges don’t want their decisions overruled. Does anyone here have a good sense of the probability of the 11th Circuit overruling this decision?

    • emptywheel says:

      As I noted, neither of these citations are surprising. The principle that states control their own elections is well-founded. This should not be a controversial opinion. I just highlighted them to note that Meadows will be making an argument that directly undermines a lot of the arguments that he and Trump were making in 2020.

      The thing is, the radicals, especially at SCOTUS, don’t really care about consistency or anything else. THe question is where Roberts and Kavanaugh will come down.

      • timbozone says:

        In Meadows appeal, it may hinge on the Congressional record surrounding the debate prior to passage of the Hatch Act. There was a decision to exclude the VP and President from the Hatch Act, the question then gets into why no other Federal officials were excluded from its provisions. Note also that the legal theory of Executive Privilege extended Presidential powers beyond what is envisioned in the Constitution, and then was codified somewhat AFTER SCOTUS signed on to the theory. The same thing might happen with regard to carving out a special exception to the CoS POTUS if the current SCOTUS has a mind to.

        • gretapooh says:

          I believe the president and vice president are excluded from the Hatch Act because they are the only Executive branch members that are elected, not appointed by POTUS. So his CoS would still be covered by the Hatch Act.

        • timbozone says:

          That depends on legal theories that may be hatching even as we discuss this here. EP was invented from whole cloth—it did not exist in law before the Supreme Court agreed that it did exist. I’m also reminded of Dick Cheney not having to disclose visitor logs to the White House under a big stretch of the EP theory… so who is to say what other exceptions to the actual current assumptions of what is and is not covered by EP or related principles? Currently, the ones who gets to decide in the end is the Supreme Court of the US.

      • DoctorDoom says:

        Granting your point that the SCOTUS radicals don’t care much about consistency, they do care about the perceived legitimacy of the court. Judge Jones has made it harder for them to rule in Meadows’ favor because he has highlighted the inconsistencies that ruling in his favor would entail. It is harder to claim authority if fickleness is your brand. Being perceived as result-driven would further delegitimize SCOTUS in public perception and Meadows is probably not viewed as being worthy of that high a price.

    • bmaz says:

      No judge relishes being overturned, and I doubt the one here will be, even by the 11th. Jones put a little of this on himself by pondering at O/A whether if even one allegation was removable would the whole case as to Meadows be. Jones has answered that clearly.

      • SteveBev says:

        I read Jones decision with considerable interest. His analysis of what constitute the elements of the RICO offence as it applies to Meadows illustrates the astonishingly broad nature of the statute.

        Meadows had focussed his testimony and arguments on the overt acts alleged against him, as if they either individually or collectively constituted ‘an act or acts with which he was charged’

        In Jones’ analysis which covers many pages of the 49pp judgment, the ‘act’ requiring proof is ‘participation in the racketeering enterprise’. The judge states ‘the overt acts alleged against him are not elements of the offence but merely illustrative in nature and not elements of the offence’ (p34) but nevertheless goes on to consider and assess the individual overt acts alleged in the indictment, because Meadows had shaped his presentation around them. Jones then found that of the 8 overt acts alleged Meadows only carried his burden regarding one of them (overt act 6) as being an act which could have been within his federal role

        The concept of overt acts being illustrative but not element of offence charged is a difficult one to grapple with.

        And it seems that perhaps at the time of requesting further briefing Jones had not by then fully done so.

        • bmaz says:

          Yeah, that strikes me as right, good on Jones for recognizing the issue and getting it dealt with properly. No problem with his decision, think it pretty sound.

        • SteveBev says:

          Indeed it seems a model of exegesis on a set of knotty and nuanced issues.

          And the manner in which he analysed the contentions on the overt acts covers all the bases; so even if the 11th Circuit is not entirely convinced of the analysis of the nature of the ‘act’ constituting the basis of a RICO offence, there can be no doubt that on the facts arising from the evidential hearing Meadows would have and did fail to show that even on the alternative view of what might in law constitute the gravamen of the charge, the conduct should be regarded as properly within his role

        • WilliamOckham says:

          To my untrained eye, the subtext to Judge Jones decision is that if you think Meadows should get to remove his case, you must declare Georgia’s RICO statute unconstitutional. And while I don’t think that’s going to happen, I’d take that tradeoff.

    • bbleh8ch says:

      I did notice and appreciate in the opinion (also quoted in the OP) his citation of Scalia regarding the “gravamen” of the suit, which word or concept (eg as “heart”) he used several times in parsing out the various overt acts vis-a-vis his official duties. (One might almost say it was the heart of his argument.)

  3. vinniegambone says:

    If Meadows want a trial in Federal Court grant his wish.
    Charge him with violating the Hatch act.

    Letter carriers and Navy Yard employees I know dare not work for Campaign for fear of losing their jobs.
    I guess because you work in the White House it becomes-
    The Escape Hatch Act.

      • vinniegambone says:

        No.
        Was being facetious.
        He already lost his job.

        Still, might it be worth noting at trial that he did violate the hatch act, and knew he was violating it, and it reflects , although infistestmal, consistent disregard for the law.
        150, 000 federal employees have to abide by it.
        Likely not worth the time it take to mention in court.
        Don’t use Pea Shooter when you have a bazooka, huh ?

    • emptywheel says:

      Jack Smith is approaching his indictment as a way to prosecute Trump, alone, before the election. That’s a wildly different approach than Fani Willis. One part of that approach is that, if Mark Meadows tells you something that is likely dishonest but nevertheless really useful to prosecute Trump, you go with that until Meadows makes it more clear he was being dishonest. This is why Meadows is so desperate to eliminate his GA risk: Because too much more focus on his action there will likely lead the story he told Jack Smith’s grand jury to start to crumble.

      Smith hasn’t even charged Trump’s big co-conspirators yet. No reason to charge Meadows federally until you’re sure he just won’t be pardoned in President Trump’s second term.

      • Peterr says:

        “Smith hasn’t even charged Trump’s big co-conspirators yet.”

        The phrase “make them sweat” comes to mind. Each one, and each of their lawyers, are wondering what the SC has on each of them. Each one, and each of their lawyers, are wondering if their big co-conspirators are thinking of flipping, to save their own skin. Each one, and each of their lawyers, are losing sleep as they weight the risks they face if things go to trial.

        If Meadows is desperate to eliminate some risk, he could always sit down with folks the SC office as “Queen for a Day” and try to wrangle a deal. Of course, having lied in his earlier GJ testimony might make that slightly more difficult. OTOH, if Meadows has documentary backup that could implicate Trump . . . yeah, he could lessen his risk rather significantly.

        To borrow from Meatloaf’s “Paradise by the Dashboard Light”, what’s it gonna be, Mark – yes or no?

        • Ewan Woodsend says:

          Maybe one can test your theory about losing sleep by indirect measurements. Living all other factors aside, eating more and gaining weight is a natural response to lack of sleep. So if the girth of the legal team associated with defendants is rising significantly over the next few month, you can assume they are losing sleep more than usual.

        • Purple Martin says:

          Let me sleep o-on it; baby, baby, let me sleep o-on it.
          Let me sleep on it, and I’ll give you an answer in the mor-ning

          Actually, don’t know the title so I’m not sure that’s the right song but, given the context, seems it must be.

    • William Allen Simpson (DayDreamer) says:

      The big stick for Hatch Act is that the employee can lose their job. Meadows doesn’t have a job to lose.

      Here in Michigan, I’ve known somebody who lost a legislative job. I’d viewed it as very unfair, as legislative jobs are obtained by working on campaigns. Then, you have to be careful about ever working on any campaign again.

      • Rayne says:

        Bullshit. It’s not unfair at all. Once you’re working for government, you serve ALL the people and not just the voters who elected that candidate. The entirety of constituents should not be paying for a continuous partisan campaign they don’t support.

        Jesus fucking Christ, have you thought at all about how women of childbearing age might feel about Hatch Act violations committed by raging misogynists who are anti-abortion? Or BIPOC or LGBTQ+ persons being denied equal representation on their own tax dollars by supporting without their consent ongoing partisan campaigns run from the offices of electeds who want them enslaved or dead?

        And I’m demanding you think about this as a Michigander myself.

        • Peterr says:

          And legislative jobs are by definition partisan. You work for an elected official with a partisan role. Yes, you deal with all your constituents, regardless of political background, but legislative jobs are completely dependent on the political person for whom you work. Period.

          Executive branch jobs, OTOH, are (at most levels below the highest) non-partisan. You serve all the people, within the political bounds set by the president/governor.

        • timbozone says:

          As Rayne stated above, the jobs of paid legislative aids are funded by all tax payers, not specific political campaigns. The employer is the tax payers, not the campaigns.

          Note that if you try to do it where the campaigns pay the legislative aids who “volunteer” to be legislative aids then you move into the realm of denial of honest services, possible bribery.

        • Peterr says:

          Even so, the legislative branch exempted themselves from the Hatch Act.

          From the US Office of Special Counsel’s training brochure “A Guide to the Hatch Act for Federal Employees“:

          The Hatch Act generally applies to employees working in the executive branch of the federal government. The purpose of the Act is to maintain a federal workforce that is free from partisan political influence or coercion.

          Members of Congress and their staff are not covered by the Hatch Act.

        • timbozone says:

          Fortunately, in theory anyways, the federal and state level bribery and fraud statutes are still applicable, although perhaps harder to enforce thanks to a corruption friendly US Supreme Court.

        • ernesto1581 says:

          “Once you’re working for government, you serve ALL the people…”

          Thank you. This sentence should be tattooed on the forehead of every elected public official, in retrograde, so that it can be seen in the mirror every time they brush their teeth or wash their face.

          (Kafka described an interesting machine designed for an allied, albeit more deadly, purpose.)

      • Norskieflamethrower says:

        The entire purpose of the Hatch Act is to keep elected officials from having a reserve army of partisan campaign workers paid by tax payers.

        • Yankee in TX says:

          Without the Hatch Act, you’ll end up like Huey Long’s Louisiana. Louisiana has always been corrupt, but Huey organized the corruption. Every public employee – janitor, teacher or university professor – was required to pay 10% of their salary into the “De-duct box” for Long’s own use. After his “assassination” the millions in the “De-duct box” disappeared! Sic transit gloria mundi!

        • Yankee in TX says:

          No, only that it could be much, much worse. Trump, et al. are just pikers compared to the corruption of the Long machine – and without any of the tangible accomplishments that Huey and his brother made. Huey earned the pie-eyed looks of gratitude from his followers, while Trump is just a grifting con man.

        • BirdGardener says:

          My dad used to tell a story about how either his federally-employed grandfather (b. 1863) or great-grandfather (b. 1825) was forced every election to stump for the boss’ preferred electoral candidates. Boss would come into the office, round everyone up, and send them out to campaign, on the taxpayer dollar, for whoever the boss supported. Refuse and lose your job.

          The Hatch Act protects federal employees as well as the taxpayers, the general public, and speaking broadly, our democracy.

        • Peterr says:

          No. The entire purpose of the Hatch Act was to keep the executive branch from being used as a political army of paid campaign workers for the head of the executive branch.

          As I noted above, the Hatch Act does not cover elected members of Congress and their staff.

        • Yankee in TX says:

          But if Trump47 (please God NO!) undoes the Civil Service Act with an expansion to Schedule F to make so many more government employees political appointees, it’ll be Michael Lewis’ The Fifth Risk on steroids to the 10th power! The Heritage Foundation is already taking applications!! Heck of a job Brownie! How can so many people have collective amnesia about the disasters that have befallen the USA every time we give the Republicans the wheel?

  4. earlofhuntingdon says:

    Thanks for noting again, in relation to Jeffrey Clark, that his superiors slapped him down for interfering in activities beyond his remit. A TV lawyer on MSNBC today was still saying that Clark might have the strongest argument for removal because he was at the DoJ. But they don’t mention your point: his responsibilities didn’t include what he did regarding elections, and the DoJ found no material election interference that would justify its involvement.

    • Peterr says:

      I’m picturing the DOJ prosecutor here . . .

      “I want to introduce the job description for Mr. Clark into evidence. . . Mr. Clark, do you recognize this as your job description? . . . Can you point to *anything* in this job description that has anything to do with elections? . . . Can you identify *anything* in this job description that has anything to do with Georgia state law? . . .” Etc. Etc. Etc.

      A prosecutor could have a lot of fun raking him over the coals on his own job description. Of course, Clark could plead the Fifth on these questions. While the jury would be instructed not to let his pleading the Fifth influence their thinking, if a guy is unwilling to answer questions about his own job, that’s not a good look.

      • boatgeek says:

        While I love that concept, I look forward to the hearing on removal to federal court where the same series of questions comes through. I’m pretty sure the plaintiff is supposed to present evidence, so if Clark pleads the Fifth throughout he sets himself up to lose in the removal hearing.

        • Peterr says:

          Given the Fifth Amendment issue, perhaps the DOJ might instead add Clark’s superior at the DOJ to the witness list, to question him about the scope of Clark’s duties.

          “The prosecution calls former Attorney General of the United States, William P. Barr, to the stand . . .”

    • timbozone says:

      Knowing Clark though, this will likely still be appealed up to 11th Circuit if he is knocked back to a state court on his first rodeo. Of course, that would require money to keep that snowball-in-hell rolling.

  5. earlofhuntingdon says:

    Just to note that McGuire Woods, all seven of its lawyers representing Mark Meadows (who has obviously acquired deep pockets), filed its notice of appeal with Judge Jones at the NDGA, but has apparently not yet filed its actual appeal with the 11th Cir.

    • CharleyCarp says:

      I’m not sure I understand what you’re talking about. Filing a notice in district court is how you commence at appeal at a circuit. You get a case number, and then you have to file the initial docketing stuff. eg FRAP 12(b), and order transcripts, FRAP 10(b). That is, after you file your notice in district court, it’s all administrative stuff until you file your brief.

      • earlofhuntingdon says:

        Thanks. I was thinking of the brief and its arguments to be filed at the 11th Cir. But that will be weeks away.

    • greenbird says:

      73 Sep 8, 2023 Transmission of Certified Copy of Notice of Appeal, USCA Appeal Fees, Order and Docket Sheet to US Court of Appeals re: [71] Notice of Appeal. (pjm)
      Main Doc­ument Transmission of Notice of Appeal and Docket Sheet to USCA

      72 Sep 8, 2023 USCA Appeal Transmission Letter to USCA- 11th Circuit re: [71] Notice of Appeal filed by Mark Randall Meadows. (pjm)
      Main Doc­ument USCA Appeal Transmission

  6. Savage Librarian says:

    This post really helps me to understand some of the nuances of the law much better. I appreciate some of the ironies noted. And as you say, there still may be the question of whether or not some of the Supremes will be driven by their own inconsistencies.

    If I understand correctly, Trump might have been better off if Pence had made the call to GA because neither of them would have had to worry about the Hatch Act. And yet they both would still have been on the hook because neither of them would have had any right to interfere with state election laws and procedures.

    Now I think I might even understand why it was pretty easy for my own civil case to be moved from state to federal court. It has its own sense of logic. But logic is not the strong point of the MAGA right wingers.

    • Unabogie says:

      Impossible! Scalia assured us that Bush v Gore was a one-off and not precedent for use in any other case forever and ever. And we all know how much this court values precedent and ethics!

      • RipNoLonger says:

        And since Scalia is now one offed (departed), does that mean his views of “precedent” are also gone with his wind?

    • jdmckay8 says:

      Man, that’s a loaded question with amusing possibilities.

      Especially after reading Fani Willis’ charging docs, which frame her alleged crimes in part, deprive the voters of Georgia… I find myself wondering often if the Brooks Bros. affair was similarly criminal? To whatever extent Jan 6 is legally defined in terms of insurrection (I’m not sure proper words or law), the Brooks Bros. thingie is also in a similar category.

  7. vigetnovus says:

    I do love the “citation shade” Judge Jones’ clerks threw in this decision. Much of it is on point and actually not shade as Marcy points out, but my favorite has to be the Scalia dissent in Jefferson County v. Acker. They could have cited the court’s opinion on the issue, or other relevant case law that Scalia was merely summarizing in his “gravamen” phrase, but no, they chose to use Scalia’s partial dissent to make the point! It’s like saying to SCOTUS, no other than that noted States Rights’ jurist Scalia agreed that the bar for removal is super low, and Meadows couldn’t even clear that.

  8. David F. Snyder says:

    Judge Jones’ reasoning is logically sound, and backed with solid precedent. One wouldn’t expect, at least in olden (aka pre-Trump) tymes, to see any conservative judges coming to Meadows’ rescue against that logic, seeing as doing so would imply federal powers possessed by a member of the executive branch that the GOP (supposedly) finds as an anathema. Especially so when that branch is currently headed by a member of another party.

    On the other hand, the future is never wholly predictable.

    • Purple Martin says:

      Yes, as expressed by a noted sage:

      It’s tough to make predictions, especially about the future.

      Also, apparently, by Niels Bohr, Nobel laureate in physics and father of the atomic model, warning of the importance of testing a forecasting model out-of-sample (of course, that may have been Yogi’s point too).:

      Prediction is very difficult, especially if it’s about the future!

      • DoctorDoom says:

        This reminds me of a NY Times quiz some years ago, in which readers were asked whether each of several passages was written by Ernest Hemingway or Mickey Spillane. (spaces added to break link) https: //www .nytimes .com/1995/07/23/magazine/endpaper-spillane-also-writes.html

  9. Tech Support says:

    Judge Jones remarked on the low bar during arguments, and I think that made some of us skittish that removal was more likely, not less. To have his opinion reinforce that observation and then conclude that Meadows failed to pull it off. Well… that’s gotta sting a little bit.

  10. Boatsail says:

    The Eleventh Circuit Court of Appeals will not find that Meadows actions to subvert the Constitution were within the sweep of his “Federal” responsibilities anymore than did Special Term.

    Federal officials are sworn to UPHOLD the Constitution NOT to subvert it.

    • bmaz says:

      Lol, if her “constituency” is national Democratic activists desirous of taking out Trump, sure. If, however, her constituency is actually the people of Fulton County, and the health of criminal law in Fulton County, she is failing miserably.

        • bmaz says:

          Here is the thing, the federal government has the money and resources on this. A single county of the 159 in Georgia does not, they have limited money and resources. For them to go into this crusade, in the face of drag on their real remit, is bogus and unnecessary.

        • timbozone says:

          It is entirely necessary if the Federal government can’t or won’t try to protect the voting integrity of the Georgia elections.

        • bmaz says:

          That is a complete load of shit. Who says DOJ is not “protecting” that? Or that Fulton County has numerous ways to deal with the actual acts occurring in Fulton County? There are plenty without usurping federal matters. You are biting off on the Kool Aid.

          And, the thought that DOJ/Smith are not on the job is insane. Fulton County is an irritant to that, not a solution. Fulton County is one fifth, give or take, the size of my county. Do you think our local DA is getting involved in this garbage? No. Only Willis has arrogated it upon herself to do so at the county level. It is beyond absurd.

          By the way, there are 3,143 counties in the US. Should they all be allowed to affect and crash national elections? If not, then why Fulton County? Do you have any clue what the implications will be in the future? Do you care at all?

        • Norskieflamethrower says:

          Ever since I first started reading this site, I have been dazed and confused by your stance on RICO (and got caught in your jaws the first time I mentioned it in a comment). But I the last few months and particularly in a couple comments by lawyers here today, I think I finally figured out the danger of the law particularly its breadth as it has been applied in Georgia not just in this indictment. So thanx.

        • Challenger says:

          Trump’s attack on democracy was multi-pronged and layered, it seems we are everyday learning new info, players and schemes. My memory could be wrong, I believe Ms. Willis, began her investigation, before special council was a twinkle in Garland’s eye. So she has my respect

        • bmaz says:

          Oh, so “you respect that”? So, what other things do you “respect”? Torture? Unwarranted surveillance? Death penalty? Abolition of abortion?

          Do you have any respect for due process? Or is it all transactional, like Trump?

      • timbozone says:

        That’s an opinion piece, not a news article. It would be closer to journalism is there was a boilerplate “No comment.” quote from the Fulton DA’s office. The opinion piece has none of the required hard journalistic attempt to get the full story. Without that, it’s ain’t sound journalism.

  11. Will Pollock says:

    I’m struck by Marcy’s incredible distillation, as usual, but also of Jones’ lucid, resolute and important ruling. just my opinion but any appellate court (including SCOTUS) would be hard-pressed to overturn it. if they do, it will be very interesting to read the rhetorical hoops they will jump through to get there.

  12. The Old Redneck says:

    I still have the heebee jeebies about Bush v. Gore. Before that decision was announced, a lot of serious court observers thought the Supremes would never inject themselves into a procedural elections issue controlled by state law. Well, they found a way. Scalia said “we had to do something” and told everyone to “get over it” (David Souter was do disgusted I think he considered quitting the Court).
    That tendency – to get to the result you want regardless of federalism or logical consistency – is no less real with this Court than the one we had in 2000. So I won’t be assuming anything until this decision survives the Supreme Court gauntlet.

  13. earlofhuntingdon says:

    Meadows asks Judge Jones to stay his decision to remand his case to state court, while he appeals the decision to the 11th Circuit. Jones apparently granted Meadows an Expedited hearing tomorrow morning.

    Good luck with that. Under the removal statute, state court proceedings in a criminal case are explicitly NOT stayed even when a decision on a motion to remove is pending. Here, the motion is no longer pending: the federal court has decided to remand, not remove. So, there appears to be a double hurdle for Meadows to jump.

    https://www.theglobeandmail.com/world/article-mark-meadows-files-appeal-to-move-georgia-election-case-to-federal/

    • timbozone says:

      I’m betting that he’s going to have to proceed in the state court system. Think there’s early precedent that would make that the likely outcome. Plus, Jones already ruled that he had to at least initially do that with regard to arraignment in Georgia, etc.

  14. earlofhuntingdon says:

    John Lauro et al.’s motion to recuse Judge Chutkan for purported bias in the J6 case in DC. Trump hates to wait, so he wants Chutkan to decide this motion on an expedited basis – and doesn’t want her deciding any other matter in this case before deciding this one.

    Guffaw. Lauro’s attempt at dominance will appeal to Trump, who finds himself contending with a fair and experienced federal judge, who happens to be an immigrant and woman of color. But it’s an approach that would not win points with any federal judge. Lauro isn’t zealously advocating for his client. He’s generating campaign talking points.

    https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.50.0_5.pdf

  15. earlofhuntingdon says:

    Terry Kanefield doesn’t see much in this motion, beyond misquoting case law. She points out that the decision to recuse is discretionary, which means it ain’t gonna happen and is unlikely to be reversed on appeal. The statements Trump finds offensive were made in the context of other J6 cases – and are likely to have been echoed by every other DC district court judge who had to wrestle with such cases.

    As for the general tenor of Trump’s argument, it’s on par with his self-aggrandizing attitude that anyone who disagrees with or fails to kowtow to him is a threat to the safety and security of the United States, and an existential threat to democracy itself. LOL.

    https://mstdn.social/@[email protected]/111048758520803355

    • SteveBev says:

      The specific contentions made on behalf of the defendants
      Christine Priola and Palmer in their respective sentencing hearings are not quoted within the body of the motion, so an important aspect of the particular context of the complained of remarks is missing. No doubt deliberately with an eye on the Trump based consumption of the present complaints.
      The context does come through the glass darkly though , because it does seem that in each case the defence were looking for some leniency on the basis of their beliefs that the election had been stolen, and the defendant had been encouraged not only to believe it but to act upon such beliefs by the President and others.

      So the Judge’s remarks are likely responsive to the ways the defendants sought to frame issues relevant to the determination of matters before her.

      I haven’t read those transcripts.

      But it seems highly likely that the remarks can by fully explained and justified by their context.

      As no doubt, all similar remarks by other Judges in J6 hearings, and Trump litigation can be justified by their contexts.

  16. BRUCE F COLE says:

    The “disqualifying statements” they highlight in defense of her recusal are, indeed, highly problematic, though. “Campaign talking points” get extra mojo when actual prejudice can easily be inferred. Just the first three pages of the motion gives two statements that so qualify, imo. Just as with Judge Cannon and her commentary in her SM order that clearly set Trump’s personal concerns above the exigencies of
    US National Security, a case can reasonably be made that Judge Chutkan has prejudged this case.

    Smith’s rebuttal, of course, can be that those comments were made during the sentencing stages of capitol rioters’ trials, after facts — including Trump’s exhortational and organizational participation in the assault, as well as his refusal to order it stopped until Congress had fled and our country had been historically violated — had been established a thousand times, known facts in the public sphere, beyond reasonable doubt. Her commentary about Trump having skated to that point was actually prompted by the defense having raised Trump’s having skated in the sentencing process. She was affirming their observation of the appearance of unequal justice; charges having subsequently been brought against Trump, she’s only doing her job and her judgements to this point have been objectively impartial. He may even compare her rulings so far to some of Carroll’s MAL pre- and post-indictment rulings in his response to Trump’s motion.

    The underlying problem is the condition of our national state of discourse, in which the “center does not hold.” With that in mind as the backdrop Chutkan is standing in front of, I’d be totally unsurprised if she agreed with Defense that her statements can be reasonably taken as prejudicial by many, as proscribed by 28 USC 455 (a), and that the trial should randomly be given a new judge in order for that potential question mark to be erased.

    Then Smith could make a similar motion in SDFL, lol.

    Reading her statements in question leaves me with a suspicion that this isn’t going to be a slam dunk for the govt by any means. If she stands her ground, Defense may well petition for mandamus to the DC Circuit — and I bet a hearing would be granted.

    • Konny_2022 says:

      Judge Chutkan’s immediate reaction was a minute order:

      MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant’s 50 Motion for Recusal, it is hereby ORDERED that the government shall file any opposition no later than September 14, 2023, and the defense shall file any reply within three calendar days from the filing date of the government’s opposition. All other deadlines set by the court remain in effect. Defense counsel is reminded of the requirement to confer with opposing counsel before filing any motion and to indicate whether the motion is opposed. See 09/05/2023 Second Minute Order. Future motions that fail to comply with that requirement may be denied without prejudice. Signed by Judge Tanya S. Chutkan on 9/11/2023. (zjd)

      The 09/05/2023 Second Minute Order was:

      MINUTE ORDER as to DONALD J. TRUMP: Defendant’s 48 Motion to Vacate is hereby GRANTED. The court’s previous Minute Order of September 5, 2023 is VACATED. Defendant shall respond to the government’s 47 Motion for Leave to File by September 11, 2023; the government may file a Reply by September 13, 2023. Any opposition or reply may be filed under seal. Going forward, all motions, including motions for leave to file, must (1) indicate whether the movant has conferred with opposing counsel, and (2) state the nonmovant’s position on the motion, if known. As it has done here, the court may require briefing on motions for leave to file under seal on a timeline shorter than the default periods provided for in the Local Criminal Rules. However, all such briefing may be filed under seal without further order of the court. Signed by Judge Tanya S. Chutkan on 9/5/2023. (zjd)

      Quotes from https://www.courtlistener.com/docket/67656604/united-states-v-trump/ — bolding mine.

      • BRUCE F COLE says:

        Interesting…and nice catch.

        She’s actually ramped up the conferring requirment from “indicating whether movant has conferred with opposing counsel,” to that conference being a requirement now, and adding the (possible) penalty for future failure to confer and offer a statement of the opposition being denial without prejudice, going forward.

    • SteveBev says:

      The standard is not “whether the statements can reasonably be taken as prejudicial by many”

      ‘Many’ are likely to have been mislead by the couching of these remarks without adequate context in the motion, and some of the many, by the further stripping of context by sound bite reportage.

      “The inquiry is an objective one,
      from the perspective of
      A reasonable observer
      Who is informed of
      All the surrounding facts and circumstances”

      And using that stand point to discern whether such an observer would perceive the remarks as revealing a deep seated antagonism.

      As an instance of a misapplication of the
      ‘Many people think test’, Vladimir Putin has weighed in this morning with his own thoughts on the matter.

      • bloopie2 says:

        Informative and interesting, thank you. Reminds me of the standard for determination of design patent infringement in the US: “Whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design was the same as the patented design.” Both of these tests incorporate the requirement that the decision maker must have relevant “background knowledge” and must take that into account when deciding. It’s pretty clear why that consideration of context is important in the current situation. Someone who would take quotes standing alone, like a news (or opinion/Fox) organization, is deceptive, to say the least.

        • SteveBev says:

          Yeah.

          The ‘many people think’ trope is a standard sleight of hand by populist demagogues.

          It works because it is a superficially reasonable way of expressing that a cause for concern has a legitimate basis; that if many think ‘it’, then ‘it’ is a reasonable thing to believe.
          And formulations such as “ whether the statements can reasonably be taken as prejudicial by many” are simply a more elaborate version of the same circular reasoning, if many people think it it is reasonable for many to think it.

          What such formulations do is distract from the real issue – whether the totality of relevant evidence and objective facts when objectively evaluated provide a proper basis supporting a conclusion of prejudice/bias.

      • BRUCE F COLE says:

        My suggestion that Chutkan might self recuse based on 455 (a) doesn’t suppose a finer point than her acquiescing to the broad implications given in that section that her “impartiality might reasonably be questioned.” There’s no requirement
        as to how many observers might reasonably question her impartiality, only — in a general sense — that her impartiality could be reasonably doubted. That’s why I used “reasonably” in that comment, twice, about what she might do in response — and why Defense also used it in their motion for recusal.

        As to the possibility of her recusal being imposed by order of the Circuit in response to this motion having failed and a subsequent Defense petition for mandamus put forward, that would have to fall under 18-455 (b)(1), which — specifically — proscribes a judge from “[having] a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” I think that is what, in part, Smith will be specifically adressing in his response, now prompted by Chutkan’s minute order (noted above by Konny), in anticipation of a mandamus petition if she dismisses the motion. As I said, given the statements in question, that ultimate test will be anything but a slam dunk for Smith. If Trump’s team decides not to take it beyond this recusal motion having failed, I’ll be extremely surprised.

        And if she’s still in charge after an unsuccessful 455 (b)(1) mandamus petition, SCOTUS would be highly likely to reverse that, I’m also guessing.

        (I’m assuming an Appeal to the DC Circuit of a denial for Chutkan’s recusal wouldn’t be allowed until a final judgement is handed down, and that mandamus would therefore be appropriate before the trial gets underway. Corrections are appreciated if I’m wrong about that.)

        • SteveBev says:

          “whether the statements can reasonably be taken as prejudicial by many”

          Reasonably has two meanings –
          (1) in good faith
          (2) by objectively evaluating all relevant evidence

          Many people can, in good faith, read the remarks as set out selectively in the motion, and conclude that they evince prejudice

          However the objective observer informed of all the facts concerning the cherry picked phrases would have an inadequate basis for concluding they evince prejudice/bias sufficient to require refusal.

        • BRUCE F COLE says:

          455 (a) is where the “reasonably” benchmark is laid down, and that subsection is the “self-recusal” rule which has only the Judge-in-question making the call. That’s why it’s rarely used, even in cases where blatant conflict or prejudice can be seen on the face of a judge’s resume’ or financial statement, e.g.. It’s like Congress’ rule against member insider stock trading, in that respect.

          My take on Chutkan is that she is beyond reproach as a jurist, and has a total committment to doing her job with the strictest adherence to judicial rules and strictures. That upright POV of hers, ironically, is why I think she may self recuse: because she can see that her statements, isolated though they are, would “reasonably” cast a shadow over any finding of guilt, and that eventuality is enough for her to decide to step down.

          But if she dismisses the recusal motion, a mandamus hearing for recusal under 455 (b)(1) would be another animal entirely, findings of fact coming heavily into play and it would be a deep dive for all parties, and not an easy call, IMO. I don’t share others’ belief here that the Circuit would dismiss it out of hand like the11th panel dismissed Cannon’s SM bullshit. The problem would become evident: is there a judge in the DC district that hasn’t participated in J6 findings of guilt, and who hasn’t been apprised of Trump’s integral involvement and concomitant legal jeopardy? And does that, in itself, consitute “personal knowledge of disputed evidentiary facts concerning the proceeding,” let alone “personal bias or prejudice concerning a party (Trump)?”

          That’s the other factor I think Chutkan will be weighing: whether her refusal to recuse will lead to that question being asked, and whether that will lead eventually to an assignment by SCOTUS of a new jurisdiction. If she self-recuses, then any further Defense attempts to move the trial out of DC (where it solidly belongs) can be more easily dismissed as frivolous, deflective and defective.

          And those attempts will come.

        • SteveBev says:

          The J6 cases all occurring within DC gives rise to a substantial body of judicial familiarity with the surrounding circumstances of the events in question, not only for the individual judges from the cases they personally tried and sentenced, but also from the processes by which they familiarised themselves with the decisions of their fellow judges in order to achieve proper consistency in decision making. I would be surprised if any of that gives rise to the sort of personal knowledge requiring disqualification.

          I appreciate that s455(a) is concerned with upholding perception of impartiality.
          And that the operative term is “might reasonably be questioned”

          I seriously doubt that taking an expansive view of how that should be interpreted in the context of J6 cases, would help the DC bench as a whole resist arguments that the Trump case should be removed from the venue.

          While the ‘might reasonably be questioned’ bar should not be impossibly high, nor should it be unduly lowered.

          Here, in order to make their argument, Trump lawyers not only selectively quote without quoting adequate context, but also go on to put an interpretive gloss on the phrases in order to asset they depart from what due impartiality should require.

          Should any judge in sentencing X,Y or Z depart from the matter at hand to castigate A (to whom reference has been made in evidence by X, Y or Z or otherwise) strong terms then that would be a clear case.
          Nothing alleged here (even in its own terms, IMHO, let alone when the actual context is properly considered) objectively raises the question whether the Judge might reasonably be perceived as having compromised her impartiality vis-a-vis Trump.

        • BRUCE F COLE says:

          Yes, the context does ameliorate the highlighted quotes, as Marcy well demonstrates in the Blanche/Cannon piece she put up just after this posting.

          Chutkan couches her comments nicely in ambivalent language, though her colloquy with the guilty parties needn’t have gone there at all.

          I’m probably wrong about her thinking and the likelihood of her recusal; we’ll know very soon.

        • SteveBev says:

          Graciously stated.

          I think we can agree to disagree on the minor issue as to whether it was either necessary or prudent to make the remarks she did. FWIW I think they were well within her ambit of discretion and by no means indiscrete.

          She seemed conscious of the limits and clear she had no intention of going near them let alone beyond them

        • BRUCE F COLE says:

          And the most potent sign that she’s going to take a firm stand on this is her statement that the court’s currently set and operative docket schedule will not be affected by this motion for recusal. “Chop-Chop. Delay bad.”

          Also important was her mandating that the sides inform each other, making them to stand toe to toe (figuratively). (Not that it will be cinematic, even though it is a showing of cards of sorts.) She want’s a distilled version of both sides, no rambling, just the facts.

          Oops. Dragnet reference was inadvertant, but still…

    • earlofhuntingdon says:

      Your second paragraph is closer to reality; the first is a campaign talking point. Defendant Trump has taken comments out of context, misquoted relevant comments, and failed to cite controlling law that would require recusal. His motion to recuse is close to frivolous. Chutkan will not recuse and the DC Circuit will agree with her.

  17. scroogemcduck says:

    Chutkan’s statements don’t come close to clearing the bar for her to recuse. That motion will be denied and Chutkan will move swiftly ahead to trial.

    This is a pantomime motion on the public docket, because something has been filed by Smith on the sealed docket that Trump really, really, REALLY doesn’t want made public.

  18. bloopie2 says:

    The official/unofficial distinction comes up in other places, and Trump may need to take care in distinguishing his responses, lest he incriminate himself when switching among the many different hats he wears.

    For example, Bob Woodward has filed a motion to dismiss Trump’s copyright infringement lawsuit that is based on the non-book interview excerpts that Woodward has published. Woodward opposes the lawsuit on various grounds, one of which is that Trump can’t claim copyright because he is not the owner of the “work” (the words he spoke) in question. Woodward says that Trump’s words were spoken given in his official capacity. And, he says, the Copyright Act states that “copyright protection…is not available for any work of the United States Government,” which is defined as any “work prepared by [1] an officer or employee of the United States Government [2] as part of that person’s official duties”.

    Woodward cites facts appearing to show that that Trump was acting in his official capacity:

    “Here, all of the Interviews occurred when President Trump was in office and related to his conduct as President. Compl. ¶37. The first three Interviews took place in the Oval Office, the epicenter of executive authority, and Mar-a-Lago, the “Winter White House.” … The remaining phone Interviews occurred while President Trump was on federal property, during which President Trump often made clear that he was “on duty.” See, e.g., Ex. A, 256 (“TRUMP: A little pressed [for time]. I’ve got about 12 generals downstairs waiting for me.”). The subject matter of the Interviews focused on the weightiest issues facing the Trump Administration and the American public—such as President Trump’s impeachment, his handling of COVID-19, and foreign relations with North Korea and China. President Trump also provided Woodward with special access to government documents, such as his official correspondence with Kim Jong Un. Ex. A, 423-54. Further, executive branch staffers monitored and participated in the Interviews—including the Deputy Chief of Staff for Communications and Deputy Press Secretary, whose jobs are focused on the Administration’s public messaging. President Trump repeatedly told Woodward to follow up on certain subjects with other administration officials, like National Security Advisors O’Brien and Pottinger—who Woodward also interviewed. These undisputed facts conclusively demonstrate that President Trump was conducting official business when he was interviewed by Woodward.”

    Trump may need to argue, in reply, that this conduct was personal, not official (not under color of his office). But, if giving detailed interviews to a biographer about his Presidential work is to be considered “personal”, then how could drumming up votes in Georgia not also be considered “personal”?

  19. Challenger says:

    Fani Willis began her investigation on Feb. 11. 2021, Jack Smith was appointed Nov.18 2022, She couldn’t have known anyone was going to do anything about Trump’s Shenanigans. She is to be commended for her work

    • bmaz says:

      This is complete horse shit. DOJ was working well long before the appointment of Smith as SC.

      You are gaslighting this forum, and we see you doing that. Stop.

      “Challenger”, where did you come from, and what is your agenda? Veracity does not appear part and parcel of it.

      • Challenger says:

        What I am saying is not horse shit. When she began her investigation no one knew if the 19 indicted including Trump would ever happen Look up the dates I provided. She recognized a crime or crimes in her jurisdiction and acted on them. Yes there is Gas, and it is coming from you

        • earlofhuntingdon says:

          When she began her investigation, Fani Willis didn’t know if she would indict zero, nineteen, or thirty defendants.

          In praise of Willis, you’re ignoring that the DoJ had been investigating potential crimes committed during the closing weeks of the Trump administration since Merrick Garland was sworn in as AG, in March 2021, a year and a half before he appointed Smith.

          And, um, Gas and gaslighting are not the same thing.

Comments are closed.