11th Circuit Adopts DC Logic that Mark Meadows and Trump’s Campaigning Is Not an Official Act

The 11th Circuit just ruled that Mark Meadows cannot remove his prosecution in the Georgia case to Federal court. The primary basis for the ruling is a technicality: That removal only applies to current federal officials, not former ones.

But the court, in an opinion by Chief Judge William Pryor, also explained that they wouldn’t have approved the removal in any case because Meadows (and by extension, Trump) had no authority over state elections and electioneering of Meadows (and by extension, Trump) was not in their official duties.

This passage, for example, adopts the logic of Amit Mehta’s opinion in Thompson, which was in turn adopted in Sri Srinivasan’s opinion in Blassingame, but does so to the criminal context.

Electioneering on behalf of a political campaign is incontrovertibly political activity prohibited by the Hatch Act. Campaigning for a specific candidate is not official conduct because the office of the President is disinterested in who holds it. See Thomspson, 590 F. Suppl. 3d at 82. Indeed, the political branches themselves recognize that electioneering is not an official federal function.

Elsewhere, Pryor’s opinion solidly debunks Meadows argument — adopted by Trump’s in his own filings — that the Take Care Clause gave him basis to intervene.

Meadows argues that the Take Care Clause, U.S. CONST. art. II, §3, empowers the President with broad authority to “ensure that federal voting laws are enforced.” But he concedes that the President has no “direct control” over the indidviduals — members of Congress and state officials — who conduct federal elections. And tellingly, he cites no legal authority for the proposition that the President’s power extends to “assess[ing] the conduct of state officials.” We are aware of no authority suggesting the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally-authorized act.

These are precisely the issues that the DC Circuit or, if it accepts Jack Smith’s appeal, SCOTUS, will be reviewing in weeks ahead. And by the time whoever reviews it does so, a very conservative judge will have backed the same logic coming out of DC.

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167 replies
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  2. P’villain says:

    Notably, Pryor was on Trump’s SCOTUS short-short list when he nominated the better-looking Gorsuch instead. This opinion will be closely read today.

    • P’villain says:

      Wikipedia also reminds me that he was on the panel (and likely penned the per curiam opinion) that vacated Judge Cannon’s disastrous order establishing the short-lived special master process in the Mar-a-Lago search case.

        • bmaz says:

          No, I simply think Fani Willis and her larded up ridiculous indictment are shit. But, hey, what do I know? You have a lot more experience. And it is the kind of overreach this blog would have loathed before Trump.

          • emptywheel says:

            The opinion is about states conduct elections. It has ALWAYS been the case that some of this conduct is primarily illegal at the state level, which may by why Jack Smith immunized the NV fake electors who’ve since been charged there.

            • bmaz says:

              Thanks for the helpful hints. Funny how Smith can, and does, things that a pissant local county attorney has no business doing.

              • emptywheel says:

                I guess you just decided to ignore the point that Jack is NOT doing things, perhaps having concluded that the states govern state voting. You simply said up is down so you could continue wailing.

                • bmaz says:

                  What a load of shit. Did anything Willis, one of 159 local DA’s in GA, indicted upon regard “state” voting as opposed to just the national presidential election? No, of course not.

                  • emptywheel says:

                    Once again, I guess you simply decided to IGNORE my point (consistent with Pryor), which is that there are likely some things that Jack believes he doesn’t have jurisdiction over.

                    You hate Willis. We get it. And it totally fried your brain to consider the other issues here, like how fake electors (and state CFAA) can or cannot be prosecuted.

                  • bmaz says:

                    Should the local DA of Taliaferro County in GA, population less than 2,000, who has exactly the same authority as Willis, have the power to determine national election law? If so, why? How about a local DA in Idaho? You ordered me to stay away from this topic, but now wield it against me. I am pretty comfortable where I am, but concerned.

                    • emptywheel says:

                      No. I’m asking you to stop being a dumbass and harming the blog bc you can’t even READ anymore bc all you see is Fani Willis in blinking lights when we’re talking about an ENTIRELY DIFFERENT question.

                    • bmaz says:

                      Lol, sure. I read just fine. Again, do you think every local yokel county attorney ought have this power over national elections as opposed to state and local ones?

                  • Scott_in_MI says:

                    The “national presidential election” is the votes cast by the designated electors to the EC. The elections to determine those electors are state elections.

                • Shadowalker says:

                  It might be helpful to point out that Presidential Electors are state officials. Per the Constitution it is the states who elect the President with the electoral college. They are appointed to the office according to the manner the state legislatures decide through legislation. Over time they all chose to include regular electors (the population) in that process. The question for me is, does the federal government have the authority to involve itself in a process that was given by the Constitution solely to the states? Which the framers obviously allowed if not encouraged for Art. I elections.

              • Building Guy says:

                IANAL, but wouldn’t this same logic apply to pissant former elected presidents and their appointed staff?

                  • sohelpmedog says:

                    Interestingly, the 11th Circuit’s opinion, rather than pissing on the local Georgia prosecution, gave such prosecutions much deference. It said “The Supreme Court has instructed that federal courts must “retain the highest regard for a State’s right to make and enforce it’s own criminal laws. . . . The jurisdiction to try state offenses should not “be wrested from [state] courts” lightly.”

                    • bmaz says:

                      It figures from the 11th. Still bullshit. And still ignores prosecutorial discretion, which most would ask for here, but are oblivious to when it concerns Trump.

                  • sohelpmedog says:

                    Would your position be the same as to the Georgia defendants other than Trump and the likely unnamed co-conspirators in the DC case, who have not been indicted elsewhere? Or do you think that the other Georgia defendants have been charged just because they’re connected to Trump and as to them, that they should not have been charged?

                    • bmaz says:

                      Yes. It is a ridiculous indictment as to all by it’s framing. They could have gone on GA facts and charges (although that, too, should have been done by the AG not Willis). Nobody, ever, arrogated that duty on Willis.

                    • sohelpmedog says:

                      Well for better or for worse, somebody arrogated that duty on Wills. That somebody is Willis. At least credit her chutzpah.

                    • bmaz says:

                      No. Will not do that. What if the local county attorney in Greenlee County AZ (population less than 10,000) tried to so control national election law? Would you be so sanguine?

                      If so, why Fulton County and not Greenlee to determine national politics?

          • Tim Benson says:

            Have you HEARD the Raffensperger tape? LISTEN TO IT. The entire thing. Trump from the position of being the most powerful man on the planet ORDERS Raffensperger to lie and cheat for him and CLAIM he won Georgia AFTER Georgia had already certified its election and done a hand re-count. Trump then subtly THREATENS Raffensperger with criminal prosecution for NOT LYING for him. That is LEGAL CONDUCT? What if Raffensperger complied with Trump’s wishes? NO CRIME? How is that not defrauding voters? Because Trump TRIED to commit election fraud AND FAILED it doesn’t MATTER? How about LYING and FORGING documents with fake electoral slates? Yeah, her case is “shit.’

              • hoytwillrise says:

                You have never given any reason in law as to why these cases are ‘shit’. (Great reasoning). Are they illegal ? If not, then as usual, it’s just your opinion, you haven’t given any legal reasons as to why this shouldn’t have happened. Or you can of course, file briefs in support of your argument, if this is such an egregious breach of all that we hold dear and sacred. If it’s so terrible, prove it !

                  • xxbronxx says:

                    Sometimes an unused comma is your best friend. As in “Go file your own brief jackass.” The sentence as published refers clearly to “filing” one’s “short-lived male donkey”. How one does this, or which of the 97 definitions of “filing” is being used is open for scholarly debate. If the comma had been placed where it belonged, after “brief”, it opens the door to defamation. I’d like to think that BMAZ, a Juris Doctor with vast legal experience and knowledge, knew full well that leaving the comma out was the right play, whereas he might get a few ‘thought at the moment but never articulated’, “left out the comma, Bub”, from the reader’s of this blog, he can plead innocent to the charge of name-calling. (Clearly, IANALATTMGFT)

              • RandomTurkey says:

                Rather than a county-level district attorney, would you feel differently if the state of Georgia decided to file the charges, perhaps without the RICO component you’ve regularly mocked? Since Georgia is controlled by Republicans and they didn’t seem to care about filing charges against Trump’s effort to steal the election, having Willis file charges seems like a good (but not perfect) fallback to save democracy (perhaps a reach but you get my drift).

                Since more evidence continues to come to light about the false electors and gaining access to election equipment in GA, CO, MI, and likely other states, I still don’t understand why Jack Smith isn’t charging this at the national level. I’m hoping it is sealed and he continues to focus on the simplest charges against Trump to get a verdict before the election.

                And for EW reader’s convenience, if you could paste a link to your post where you laid out your opinion on Willis’ charges, that would be helpful to read and a good retort to those pestering you.

                • bmaz says:

                  Hi there “Turkey”. You have commented 4 times, all this year, and all to attack me. You got anythings else, “Turkey”?

                • timbozone says:

                  At the moment, Smith’s strategy appears to be charge Trump, shake the tree, and see what falls out. There may be subtle 4th and 5th Amendment reasons why Smith is proceeding this way rather than charging a host of others at this time.

                  • Harry Eagar says:

                    In addition to the not-at-all subtle desire to keep the focus on the miscreant who really counts; as well as to avoid the endless squabbles that have roiled the Fulton trial.

                    I think that — belt and suspenders — it was good that both approaches were attempted in different courts.

                • earlofhuntingdon says:

                  Asked and answered. Most people here do their own homework, even when they’re not so late to the party.

                • tje.esq@23 says:

                  “Rather than a county-level district attorney, would you feel differently if…Georgia …file[d] the charges….”

                  Yes. State matter; state prosecutor, would be prefered if suit was proper.

                  “… perhaps without the RICO component …?”

                  YES, ABSOLUTELY. But without Rico, there is very little case –about 5-8 acts under Ga law, committed by 4-6 defendants.

                  “that [bmaz] mocks….”
                  this prosecution is worrisome to nearly all members of the criminal defense bar.

                  Please read fake elector Shawn Still’s motion to dismiss page 4, and links below about Ga teachers changing test answers serving decades in prison, thanks to Willis’ over-prosecution.

                  https://www.latimes.com/nation/la-na-teachers-rico-20150416-story.html
                  https://www.washingtonpost.com/education/2022/02/01/atlanta-cheating-schools-scandal-teachers/

            • SteveBev says:

              I am sure that bmaz could more than adequately dispatch this frivolous accusation for himself but
              Merriam-Webster has this CLEAR definition of idiomatic use of larded

              “ to augment or intersperse especially with something superfluous or excessive eg
              the book is larded with subplots”
              See also
              Shakespeare
              “Mirth thereof larded with my matter”
              “Wit larded with malice”
              “ I found a precise command, Larded with many many kinds of grounds; my fears forgetting manners—to unseal Their vast commission.”

              • Rayne says:

                Ugh. I can’t fight back the pedant in me. You do know what lard is and why one might use it, yes? Somehow this is missed in the definitions though it shapes them. A tough, flavorless, dry cut of meat may benefit from lard. As a metaphor, larding can therefore be construed to be a bad or good thing — consider the source.

                • SteveBev says:

                  I certainly do

                  I’ll post my recipe for Lardy cake sometime

                  or perhaps you may prefer a lard crusted baked whole haunch of venison- not a tough or flavourless cut of meat by any means, but it’s a recipe to delight the palate of those who dislike their meat extremely rare (I, however, prefer my game near bloody)

                  The former chef in me doesn’t need Websters to tell me the origin of larding, but I thought I’d fillet their definition for the purpose of instruction, to provide the morsel most apt for the purpose, adding some gobbets of the bard, so the Fred might see he has made himself farci-cal, and been served up as toad-in-the-hole.

      • Rugger_9 says:

        Decaf!

        What is important here is not just GA but DC, because the underlying logic l see here is that ‘presidential immunity’ excuses everything, whether it is classification, control of records, etc., etc. and therefore anything that supports the officeholder is by definition a government action and therefore immune from scrutiny much less prosecution.

        The number of ‘therefores’ I had to use indicates just how much of a daisy chain this is.

      • Matt Sil says:

        Could you explain what is wrong with the indictments? How is it overreach? Are you saying that state law enforcement has no right to prosecute violates of state election laws? If not what is your claim?

        [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. Thanks. /~Rayne]

        • timbozone says:

          Unfortunately, the Fulton County DA’s RICO case is so sprawling that Bmaz may be stuck having to explain this for quite sometime?

          Nuance doesn’t play well with vociferous negation. As Bmaz has stated a few comments up, Bmaz had responded with nuance about this case at some point in the past. Regrettably, I never recall seeing it until his reply today. And here is the gist of that:

          Firstly, Bmaz believes that the false electors plot needs to be prosecuted in Georgia for violating Georgia state law, although where he is in agreement with Willis there on specifics, I am not exactly clear.

          Secondly, Bmaz has stated he supports the prosecution by Fulton county against those (eg Freeman) that sought to illegally threaten/terrorize/suborn Moss and Shea, the two innocent Georgia election workers that Trump et al tried to make fulcrums in the Twisslering plot (those are my words obviously, not Bmaz, for whom I am too liberally paraphrasing for sure!) to prevent the lawful transfer of power in 2021. (And, just the other day in fact, Bmaz, has strongly implied that the believes that Guiliani is certainly legally libel for some of the falsehoods and horrible things said about Moss and Shea in a related Federal civil lawsuit from the DC Circuit.)

          Thirdly, and this should go without saying at this point, it being a tradition at Emptywheel of sorts, Bmaz IS NOT a fan of charging RICO, and particularly NOT of the willy-nilly variety. Semi-coincidentally, DA Willis >IS< a fan of charging RICO, and the Georgia state variety in particular.

        • Doug_Fir says:

          Not a lawyer, but if I recall correctly:

          RICO laws in general, and Georgia’s in particular, are rife with opportunity for prosecutorial overreach.

          Willis has shoehorned her case into RICO because that’s where it gets the most traction. Using a bad law to launch a case with national profile reveals that her intentions are primarily personal and political, rather than prosecutorial.

          Not trying to put word’s in bmaz’s mouth, that’d be a dumb idea. Just tossing this out to see if I’ve got it right. Looking forward to corrections and clarifications from the lawyers and other knowledgeable people.

            • JonathanW says:

              I’m a pretty newbie commenter at this blog so I hesitate to tread into these waters but I’m very curious to understand a nuance here from bmaz (and others too obviously). Assuming you are right about the GA case in general, isn’t the 11th Circuit making the right decision to say this shouldn’t be removed to federal court because it concerns behavior outside of the outer bounds of Meadows’ office? Wouldn’t the proper remedy to the prosecutorial overreach be to have some of the charges dismissed in the state court? I read the post we are all commenting on here as about the topic of removal not the validity of the charges.

              Or am I misunderstanding the full scope of your points, bmaz, and you also think this should have been removed and disagree with this particular decision from the 11th Circuit.

              • bmaz says:

                It is always about the validity of the charges, and who is bringing them where, and why. I live in a city with far more people in it than Fulton County, should a local prosecutor be determining national presidential elections? If so, why?

                The local “county attorney” here represents nearly five times that of Fulton County, would you want her deciding national presidential election law? By the way, the local DA is named Rachel Mitchell, and you may remember her from her national attack on Christine Blasey Ford in the Brett Kavanaugh hearing.

                Fulton County will not do the right thing. And people will continue to glom on because they are deranged and unfocused. Saying it is “just enforcing state law” is bonkers. Was there ever a designation by the state AG to Willis? Of course not. It just feels good, do people who are running with it understand that and the precedent? No.

                • Harry Eagar says:

                  Which national election is Willis determining?

                  If you believe polls (which I don’t), then even if she succeeds, trump’s standing with the electorate does not change.

                  (I suppose bmaz and ‘the whole defense bar’ are up in arms about Abbott making national policy on immigration, though, as a matter of fact, I have not heard any of these defenders of righteousness saying so out loud. Possibly I do not listen widely enough.)

                  • bmaz says:

                    The Presidential one, are you dense? And, yes, “bmaz and the whole defense bar” are “up in arms” about Texas, and not just about immigration, but abortion too.

                    No, you do not listen very well, and make assumptions you have no clue about.

                    • timbozone says:

                      Basically, Trump and his gang tried to strong arm vote counts in Fulton County and ran into the wrong DA when they did. It’s that simple. All this stuff about future elections being the motivating factor might have some merit when it comes to Willis prosecution of the Twisslerings, but that’s because, if this sort of thing is not prosecuted by local jurisdictions at some point, local jurisdictions may will have zero say when it comes to stopping future election strong arming of local election officials.

                      Yeah, surprise, the DA that used RICO to investigate and convict teachers of selling test grades, etc, is also using RICO years later to charge Jan 6 coup-plotters for conspiring to disenfranchise Fulton county of its right to an accurate vote counting of it’s own votes. Sucks if you are charged but the fact that several lawyers involved in the plot have already pled out here means there’s meat on this prosecution. Substantial meat. What’s surprising is that some other enterprising DA elsewhere in some other jurisdiction didn’t jump on similar cases elsewhere…or is Fulton county more unique than other jurisdictions somehow, so unique, in fact, that it >should not< enforce its voters right to not be disenfranchised by conspirators if the conspirators are coming from out of state?

                • Just Some Guy says:

                  Not sure why this argument keeps being made since I am not aware of what county populations have to do with these potential crimes, but Fulton County, GA is larger in population than Pima County, AZ. And as far as I know, Arizona’s AG is still investigating there:

                  https://www.azcentral.com/story/news/politics/elections/2023/12/19/arizona-fake-electors-investigation-case-cyber-ninjas/71959378007/

                  Now, I’m not a lawyer but I do know a bit about American history, particularly in the South, and if a county’s size has any relevance at all to attempts at disenfranchisement of legal voters, those voters in small Georgia counties are likely Black. Given the sordid history of Black disenfranchisement in the South, the efforts of 2020 are of particular concern and importance.

                  (As an aside, Georgia has the most counties of any state, carved up in quite a remarkable way.)

                  • bmaz says:

                    Hi there, I live in Maricopa County, not Pima. And since you are “not sure”, the reason is that some, basically, city attorney should not be arrogating national law to herself.

                    • Just Some Guy says:

                      Apologies for mistaking your county of residence, though I still would love to understand what a county’s population has anything to do with whether a prosecutor charges alleged crimes in it.

                    • bmaz says:

                      What the fuck about not having a local prosecutor determine national presidential election law do you not understand?

                • timbozone says:

                  What is “bonkers” is assuming that Fulton county not enforcing the election integrity of its elections, election workers, and Electoral College selection vote counting, against a nation-wide coup plotter conspiracy of lies, strong-arming, threats, attempted subornation, etc, will somehow lead to freer and fairer elections. Further, the state Capitol is in Fulton county, something that you most certainly can’t blame Willis for. And, last time I checked, most (all) DAs, in all 50 states of the United States, are empowered by their respective state to prosecute violations of state law when the occur within the geographic boundaries of a given DA’s county.

          • Doug_Fir says:

            Found a concise discussion of RICO and the Georgia case at Reuters:

            https://www. reuters.com/world/us/trump-charged-under-law-used-prosecute-mafia-bosses-2023-08-15/

            (Link broken with a (space) after “www.”)

            The article hints at RICO’s weaknesses, particularly in Georgia, without making any overt statements.

          • OneFineMonster says:

            Unless I’m misunderstanding, does this imply that Willis’ convictions–assuming she gets them–might be easily appealed or thrown out? Everything I know about law came from following the results of this election. EmptyWheel, Lawfare, prosecution Donald Trump and the MSW podcasts are my main sources of education in this topic. I don’t remember anyone ever raising this issue of the RICO tactic here being historically fragile. Now I have something else to be anxious about.

            Ugh. :(

              • Rugger_9 says:

                To buttress your point about law abuse, we have Paxton in TX and Rokita in IN doing abuses for political grandstanding. Much of their leverage has to do with the vague ways laws like this are drafted. How would you draft a RICO law that could be effective for wink-and-nod mafiosi but still give defendants a fair shot?

                With that said, Willis seems to be following her state law however squishy it is, and McAfee doesn’t strike me as the kind of judge that would tolerate pushing the envelope.

          • Ginevra diBenci says:

            Fani Willis is a prosecutorial descendant of Rudy Giuliani, who pioneered the “crusading superhero” use of RICO to supposedly clean up NYC decades ago–whether the city wanted it or not, and it was mainly the outer boroughs that wanted it.

            “Sauce for the gander” irony doesn’t justify the way Willis has targeted mainly people of color using these laws, until Trump’s pack came along. She resembles Trump in that both generally punch down, targeting those with significantly less institutional power than they possess.

            Now she’s picking on someone(s) much more powerful than herself. Finally. I have a hard time rooting for her, but no problem rooting against Trump.

  3. Peterr says:

    Three sentences leaped out at me. First, as Pryor describes what will come in more detail later in the opinion, the opinion fires this shot at Meadows and his (il)logic (p. 10):

    . . . even if Meadows were “an officer,” his participation in an alleged conspiracy to overturn a presidential election was not related to his official duties.

    And later, in the more detailed discussion, comes this gem (p. 22):

    Simply put, whatever the precise contours of Meadows’s official authority, that authority did not extend to an alleged conspiracy to overturn valid election results.

    The third sentence, though, ought to worry Trump more than Meadows (p. 33, with emphasis in the original):

    Meadows’s participation on the call [with Raffensperger] reflected a clear attempt to further Trump’s private litigation interests: he urged the participants to “find[] a path forward that’s less litigious.”

    Though Trump was not a party to this case (GA v Meadows), a federal appeals court has now officially described Trump’s call to Raffensperger as a private, not an official, act.

    • timbozone says:

      And the 11th Circuit appeals court no less. I’m guessing this ruling, denying Meadows motion to move this to Federal jurisdiction, etc, will be appealed to the Supreme Court by Meadows…as long as he has grift money still rolling in to do so. If there’s one thing we know about most of these coup guys, it’s that they are adherents of that immortal Space Quest line…

      https://www.youtube.com/watch?v=FNLUS0o69wQ

        • Rugger_9 says:

          I’m not so sure the SCOTUS majority would extend such power to Defendant-1, I think only Alito and Thomas go for granting immunity to Inmate P01135809. As a speculation, someone less crazy might get the nod later on.

      • emptywheel says:

        I wouldn’t be so sure on Meadows.

        The removal question is an important one. But that’s presumably why Pryor including the “even if” language: Even if Meadows were to overturn that, he’d be back before 11th C and NDGA on the official acts which, for him, was the more important issue.

        Plus, if he were to appeal and LOSE on the official purpose issue, he’d have pre-fucked Trump on the DC appeals.

      • tje.esq@23 says:

        I’m going to bet against. Pryor is well respected, and firm in his convictions regarding application of the law, no matter the party before him.

        In a recent post, I noted Pryor’s reasoning in the J. Cannon reversal, anticipated he would write this removal decision and use similar logic, and predicted fast turnaround. I’m no soothsayer. Pryor judges similar matters similarly and reminds in word and deed, that Americans deserve consistency in the judiciary’s application of the law, so its citizens can conform their conduct to it.

        He’s a jurist’s jurist. I don’t see SCOTUS touching this one.

  4. Scott_in_MI says:

    “[T]he office of the president is disinterested in who holds it” is perhaps the most succinct statement of that distinction that I’ve yet seen.

  5. Ebenezer Scrooge says:

    Yes, Prior is a conservative. But the other two judges on the panel consist of one Obama appointment (Rosenbaum) and one Biden appointment (Abudu). And sometimes, judges are just judging, not politicking.

    • P’villain says:

      Most judges, most of the time, are on the level and not politicians in robes. In that regard, interesting that the two D appointees concurred so that they could assert that Congress could, and should, provide an explicit removal remedy for ex-federal officials to shield them from, ahem, pissant DAs who want to score political points prosecuting them after they leave office.

      • earlofhuntingdon says:

        The legislation’s purpose was to shield current federal employees, as stand-ins for the federal govt, from state action that interfered with performing their federal duties. Former public employees no longer work for the feds, so there’s no federal interest to protect. They’re on their own, which is also what happens in the private sector.

        • SotekPrime says:

          There’s an argument that there is a federal interest in telling current public employees they will be protected in the future from retaliation as a result of their federal duties, even after their term of employment.

          • Ithaqua0 says:

            Being protected from retaliation in the future is a nice goal, but NOT being protected from being prosecuted for crimes they commit as “part of” their federal duties is also important, and I’d argue more so. I suspect quite a few of the people who have been charged, including perhaps Trump himself, truly believe they are being retaliated against rather than justly prosecuted.

          • SteveBev says:

            Not only is there an argument
            Rosenbaum and Abudu cogently make that case over 10 pages in the concurring opinion in the Meadows case decision – arguing that Congress should legislate on the point.

            https://www.documentcloud.org/documents/24229166-circuit
            Pp 35-47
            And recognising a former federal officer should be covered by an amended provision is by no means to grant a get out of State Court Free Card, since there are still the other foundational prongs which need to be satisfied, which Meadows abjectly failed to do

            • tje.esq@23 says:

              I have to admit that, at first, I thought the concurrence was premised on an implausible and tangential hypothetical. But after reading all the way through, I think J. Rosenbaum’s been perusing some recent articles in The Atlantic and just hedging against the potential future Trump administration that they project.

              //Hedge your bets now, while you still can// is the shoulder tap I believe she’s trying to give Congress.

            • SotekPrime says:

              Right, exactly. Meadows has no leg to stand on here because he was not acting within the scope of his duties, plus also there’s an argument over corruptness.

              I simply claim that “he is not currently a federal employee” should not be relevant to the question – he should have been prosecutable the very day it happened in exactly the same way he is now, and the fact he is prosecutable now should imply he was prosecutable on the day of his offense.

  6. Rollo T 38 says:

    Doesn’t the Washington DC indictment of Trump paragraphs 29-33 cover the Georgia offenses sufficiently?

    • emptywheel says:

      To what end? Asserting the right to protect GA government from false claims? Affirming GA’s sovereign authority to count its own vote? Likewise affirming GA’s ability to protect its own voting machines from hacking? Affirming GA’s ability to protect its citizens from out-of-staters stalking them?

      • bmaz says:

        Good lawdy, thanks for Fani Willis being the county level self proclaimed equivalent of Justice Robert H. Jackson. “Sovereign Immunity”. Lol.

        • Alan King says:

          Was Willis stepping in front of the Georgia AG? If that office was going to start proceedings, then presumably they would have taken charge. So perhaps it was a political decision?

          Just wondering. Clearly the Georgia AG would not want to run a state-wide campaign while the trial was underway,

          • bmaz says:

            Yes. If it is statewide law being enforced, the state AG should do it. If there is a conflict involved, there should be a formal designation to another prosecutor. Willis did this on her own with no assignment.

            • Benvindo Soares says:

              …it seems to me she has all the tools and jurisdiction.
              Ironically, just as Trump did on Jan 6.

              She however – doesn’t seem derelict .

            • Rugger_9 says:

              Since the AG is GOP (Chris Carr, appointed by Nathan Deal which is not a good thing) in Georgia, perhaps he refused to prosecute and Willis had to step in.

              I’m reasonably sure she asked him first.

              • SteveBev says:

                He testified before the Fulton County Grand Jury https://www.fox5atlanta.com/news/georgia-attorney-general-chris-carr-testifies-before-donald-trump-grand-jury

                The Texas Attorney General filed a lawsuit against Georgia and three other states seeking to throw out millions of votes from all four states.

                At the time, Carr released a statement saying the lawsuit was “constitutionally, legally and factually wrong.

                “That same day he gets a call from Trump directly to warn him against opposing the Texas lawsuit,”
                In his call to Chris Carr, the president reportedly warned Georgia’s attorney general not to rally other Republicans to oppose the lawsuit.

                ” If Trump was trying to assert political pressure on Attorney General Carr to not defend that case effectively, that he was trying to coerce or solicit violation of oath office, that might be a crime the Grand Jury is thinking about,”

                Carr’s position as a potential witness clearly would have complicated the issue of his office taking steps investigating/prosecuting Trump.

                • Rayne says:

                  IMO a key fact missing when talking about the Fulton County prosecution is that AG Chris Carr *is* compromised and has been a potential target who may have flipped on Team Trump.

                  In Nov 2020-Jan 2021, Carr led the Republican Attorneys General Association (RAGA) which funded robocalls encouraging MAGA folks to go to DC to participate in the January 6 “rally.” He is supposed to have been against the robocalls a donor demanded; he didn’t attend a lunch meeting with Trump on December 17, 2020 though 10 other GOP AGs did.

                  … One Republican state attorney general who will notably not be in attendance is Georgia Attorney General Chris Carr. Trump called Carr to warn him not to urge other Republicans to rally against the Texas lawsuit, the Atlanta Journal-Constitution reported. Trump has reserved some of his harshest attacks for Georgia’s GOP state officials for refusing to reverse Biden’s win, repeatedly slamming Secretary of State Brad Raffensperger and calling for Gov. Brian Kemp and Lt. Gov. Geoff Duncan – both avowed Trump supporters – to be replaced. …

                  source: https://www.forbes.com/sites/andrewsolender/2020/12/09/trump-to-meet-with-ten-state-attorneys-general-backing-case-to-overturn-election/

                  Carr’s lack of overt action supporting the robocalls doesn’t clear him of aiding and abetting Trump’s efforts to deny voters their rights.

                  • SteveBev says:

                    No, indeed not.

                    There’s a very sketchy involvement of RAGA; and what Carr knew, should have known, did and or turned a blind eye to, amongst other issues, all needs transparency before he should get any kind of a pass.

                    • P’villain says:

                      “RAGA” just kills me. More like “RAGE.” Those guys and gals could benefit from some compulsory raga listening sessions.

                    • Rayne says:

                      Trump asked Carr not to mess with Texas’ suit and lo — Carr becomes vaporware.

                      Carr waited until April 2021 to quit as leader of RAGA, well after Biden was inaugurated.

  7. 2Cats2Furious says:

    A few thoughts.

    1. Jack Smith was appointed as Special Counsel to investigate and potentially prosecute Trump, after Trump announced that he was again running for President last year, to ensure a further degree of separation between Smith and Biden’s appointed AG. Although a few others have been swept up in the SCO’s cases, as indicted or unindicted co-conspirators, it should come as no surprise that Smith hasn’t indicted everyone involved in 2020 election interference. It’s simply not within the parameters of his job.
    2. IAAL who lives in a state (Texas) with possibly the most corrupt state AG (Ken Paxton). I don’t trust him to do the correct lawful thing ever. He filed a case against other states in which Texas clearly had no standing, which SCOTUS confirmed.
    3. Because of the 1st 2 points, I have no issue with local prosecutors bringing charges against those who allegedly attempted to interfere with the 2020 election results. I only want the defendants to have a fair trial in court, and for a jury to properly assess potential culpability.

    • Harry Eagar says:

      There is, also, the question of whether the Texas Panhandle should determine where mifepristone should be used.

      This tension goes back at least to the capitast attack on the rights of workers to assemle though the use of nationwide injubctions. On balance, I think, lefties have been wary of local judges trying to act far beyond their bases — so points to bmaz — but, OTOH, if I am right that fascists are attempting to destroy the gummint, then any legally available weapon should be brought to bear.

      I would not wish to swap democracy and the rule of law for a prophylactic against the possibility that someone, somewhere might have to defend himself against an overcooked prosecution.

      • Rayne says:

        Harry – you need to slow down or your comments are going to be throttled. You’ve attempted to publish a handful of comments inside an hour’s time, a couple of which are little more than chatter, and you’re making typos — at least three in the one above.

        Take your time. There’s also nothing obligating you to leave a comment at all.

  8. Rattlemullet says:

    Not being a student law or of Circuit Courts, bmaz seems to hold the 11th Circuit in very low regard. Could the appeal have been to a different Circuit Court? Could the court rule that the “Georgia trials” are mostly shit” and out of jurisdiction from a county prosecutor and strike down the Georgia trails?

    [Moderator’s note: Please use the same username and email address each time you comment. I’ve lost track of how many times I have had to tell you you’ve made an error in your Name/Email Address fields which causes your comment to be moderated, forcing us to manually clear it. All because you won’t take the time to double check your spelling — like the extra L in your email address this time. You are on thin ice. /~Rayne]

  9. harpie says:

    O/T
    Department of the Interior Office of Inspector General REPORT on #J6TL:
    [via Kyle Cheney]

    https://nitter.net/kyledcheney/status/1736945599432323339
    Dec 19, 2023 · 3:04 AM UTC

    Interior watchdog’s report on Jan. 6 describes how an aggressive crowd chased and hounded a Park Police officer who arrested someone at 9am near the Washington Monument. That hostility led them to back off a similarly menacing crowd at the Lincoln Memorial. [screenshot][link]

    Links to:
    Review of the U.S. Department of the Interior’s Actions Related to January 6, 2021
    This is a revised version of the report prepared for public release.
    Report Number: 21-0286 Date Posted on Web: December 18, 2023

    • Rayne says:

      Have to wonder how many other police reports made on January 6 we haven’t seen, the timing and location of which might say something about incitement and by whom.

      Thanks for that link, harpie.

    • OneFineMonster says:

      This seems incredibly damning evidence of foreknowledge of a coup.

      For the past five years I’ve been making an animated documentary feature about how I was recruited by the State Dept to create a covert anti-extremism platform. This project got reassigned to a cadre of Flynn acolytes immediately upon his rise to the White House. Even at that time those players were telling me that “something big was coming.” Later one of them would be denied security clearance, the other would be walked out of the state dept to return to work at Cambridge Analytica/SCL and both would be revealed to be close allies of Bannon, Thiel & Prince.

      Speaking from experience, trying to warn people about all of this was the stuff of comic nightmares. Fortunately I documented everything, but every intelligence agency, news outlet and media company shrugged it off with such dismissiveness that I couldn’t help but wonder–as I do in the film–if other factors were at play. I even handed over video and email documentation to the office of special counsel.

      In time I think a flood of evidence and documentation is going to emerge of just how widespread this knowledge was and the efforts undertaken to suppress it. That is–if we emerge on the other side at all. : |

      • Ginevra diBenci says:

        I got so lost in the DOI report that I missed your reply, Monster. Your experience seems singularly instructive, chilling, and portentous. I don’t expect you to answer, but I’m curious as to whether you have shared it publicly elsewhere. You may believe that yours is just one voice among many (the Miles Tellers and Olivia Troyes), but there is a specificity to your story that demands attention.

        We outsiders can merely suspect, intuit, and deduce. You can reveal the truth.

        • OneFineMonster says:

          Thank you, Ginevra. I have commented publically about it over the years and shared many document handovers and discussions with several independent and mainstream journalists and investigators–convos w Marcy included. UCLA hosted a screening of the film as a work-in-progress and that cut has been shared privately and widely. However, there is a combination of factors that makes getting attention and support a continued challenge. Firstly, there’s the issue of political IQ within the entertainment industry coupled with the fact that the severity of these dangers are primarily class-based. It makes me vomit a little to say it but there is a direct correlation between the sympathies of privilege and ignorance of the current rise in fascism. Secondly, I still have several allies within the US intel agencies. Some of these figures were retaliated against during the Trump administration and suffered or at least witnessed an attempted purge of non-Trump/Thiel/Prince loyalists. While they have to be very careful and I have gone to great lengths to protect their anonymity, these allies are continuing to monitor and warn me of attempts at retaliation and discrediting of my voice. Four years ago these claims would probably sound weird and paranoid but thanks to the weirdness of the current geopolitical scene I’m finding that I run into few skeptics of the story.

          Lastly, my story is a challenge just because of my history and style as a filmmaker. The dark cabal of monied morons wanted me because of my low-brow viral work and its popularity among youth vulnerable to extremism. The film that I am making of what happened is just as goofy and comedic and dark as my viral work and a lot of people just don’t know what to do with it. I have faith–I have to. But holy fuck has it been a difficult and isolating journey. :(

          It is a strange and bittersweet journey to be a poc in this country fighting for the survival of a democratic culture that continues to marginalize my voice. But, as the old Greek saying goes: take your good deed, and throw it into the ocean.

          • Rayne says:

            Dude. Whew. We should talk. How the hell do we break the grip on media enough to get to the public’s consciousness?

            • OneFineMonster says:

              You have access to the email provided by posters, Rayne? If so, send me an email. Would love to talk–even if just to get some anchoring socializing into 14 hour shifts at animating every day.

    • Rayne says:

      Bernard: Your comment is not a constructive use of this comment thread.

      Signed, The Other Local Area Moderator

    • James Wimberley says:

      “Animous” is presumably the antonym of “unanimous”, meaning “defying the view of everybody else”. I like it. “Animus” I just can’t stand.

      • SteveBev says:

        Pedant here: I like the notion of animous = antonym of unanimous

        However, as it turns out bmaz’s rebuff of Bernard was suitably animous

        “Animous” adj 16 C = “animose” adj 19 C = vehement

        Sadly for Bernard
        “Animous” adj =/= “animus” noun = hostile motivation

  10. Tim Weston says:

    Starting to remember why I stopped visiting Fire Dog Lake. Fortunately Dr. Wheeler’s content and analysis surpasses the knee jerk nastiness. And before I’m told to “love it or leave it”…….

  11. Challenger says:

    Da Willis is not deciding a Presidential Election, a jury will will decide the guilt or innocence of the indicted who face trial. They all have the option of a speedy trial and they could be found innocent long before any election

  12. Cosmo Lecat says:

    Certainly, there are faults with the American judicial system, which is composed of multiple competing elements: federal, state, county and local jurisdictions, each with unique laws. While it’s not ideal to have a national multi-state conspiracy prosecuted by a local prosecutor, this provides a balance to higher level prosecutors who are biased, bribed or otherwise ineffective, inattentive or corrupt. When political hacks are US or state attorneys general, then the system has a correction mechanism whereby lower level prosecutors have an independent role. Similarly, different sets of laws in different states may grant Georgia prosecutors ammunition that other states’ prosecutors lack. Yes, this hodgepodge system is less than ideal, but it’s fortunate that a lowly county prosecutor has the ability to act when federal and state AG’s do not. If the defendant is re-elected, the federal prosecutorial and pardon powers hold no sway over the state.

    • bmaz says:

      … it’s fortunate that a lowly county prosecutor has the ability to act when federal and state AG’s do not.”

      What a load of crap. What other laws and the Constitution do you think ought be definitive decided by local courts? Should your local municipal court determine everything?

      • timbozone says:

        It’s all appealable at the state and Federal levels so not sure how you can assert that what is happening in Fulton County’s prosecutions is somehow some sort of horrific local usurpation of some nebulous and undefined higher authority that should somehow be deferred to for also undefined and nebulous reasons. This is the system Georgia has. They’re following it. This is the system the Federal system allows under the Constitution. That too is being followed here.

    • Shadowalker says:

      What is the logic in involving actions committed in other states that primarily is the province of their own sovereignty? For instance: What does meeting with members of the Pennsylvania state legislature to discuss the possibility of opening a special session in their state have to do with what happened in Georgia? State sovereignty not only applies to Federal but to other states as well.

      • timbozone says:

        But that’s the thing. Each and every person charged here allegedly took actions to further a conspiracy to disenfranchise voters in Fulton County, much of it pretty blatantly. The problem isn’t that the DA in Fulton County is having an easy day of proving it, the problem is that it involved President Trump on down.

        Note, arguing that Fulton County can’t do this means that anyone can conspire anywhere in the US to directly disenfranchise voters in Fulton County and Fulton County can’t do much about it, giving such a conspiracy material support would have no legal jeopardy involved whatsoever. So, more power to Fulton County for trying to stop people (coup plotting insurrectionist in this case) from believing Fulton county is an easy mark for such type of criminal strong arming to subvert the vote counting and their fair election processes there.

          • bmaz says:

            No, it is a load of shit. Again, my local city is nearly five times larger than Atlanta, should a local DA here control US politics? Say yes, so I can tell them too start screwing with you.

                • Challenger says:

                  Who am I you ask. I am not an abusive alcoholic, nor am I here to denigrate and swear at contributors. Do you have any other questions?

                  • bmaz says:

                    I can’t even drink currently because of a medical condition. If you are calling me an abusive alcoholic, you can fuck right off. And this is now a second time you have done so in the last couple of days, and that simply is wrong and will not be tolerated.

                    Second question, why are you bugging any of the principal’s here, that is none of your concern. Mind your own business, not ours. This kind of commentary is getting seriously old, adds nothing to the threads but spam and clutter. Find something intelligent to discuss, or leave.

                  • OneFineMonster says:

                    True. Not all people need alcohol to be toxic and rotten and defensive. They just need to be deeply insecure and self-hating and incapable of even recognizing their own behavior.

                    It’s just like how many people wondered if Trump knew he was so horrible–especially how whenever his faults were pointed out he just got childish and immediately shut the door.

                    The question remains of course, did some part of him deep down know? And is that why he was so awful? Like, for instance, when it was so obvious to everyone that his biggest issue was with a DA who was a woman of color?

                    Given what the world is suffering under now, this is all deeply relevant

        • Cosmo Lecat says:

          Thanks for your reply Timbozone. The answer to Shadowalker was too obvious for me to waste time with an answer.

          As for Bmaz’s comment, “What other laws and the Constitution do you think ought be definitive decided by local courts? Should your local municipal court determine everything?” It doesn’t take a lawyer to know that the US Constitution is *definitively* decided by the Supreme Court.

          Question for Rayne, is it really necessary to send all my comments to moderation? Is that a punishment?

          [Moderator’s note: Many community members’ comments go into moderation for a number of reasons, some outside our control. Certain words, IP addresses, other mismatch factors can cause moderation. If moderation which is intended to protect the privacy and security of the site and community members is too frustrating, you are not obligated to leave a comment. You’ll note you have not been charged to either read or comment here. /~Rayne]

        • Shadowalker says:

          Georgia law applies to Georgia only. She is using acts committed in other states (acts that are meant to disenfranchise Pennsylvania voters) and applying Georgia law to them to make her case. Which happens to be Federal jurisdiction when multiple states are involved.

Comments are closed.