Fani Willis Will Have to Take Her Case to Federal Court

There is much to be said about the Georgia indictment of Donald Trump and his alleged co-conspirators, but unless I’m missing something, this much seems clear: The case likely won’t be litigated in state court in Georgia but in federal court. Trump tried and failed to move the Manhattan case to federal court, but the argument for moving this one to federal court is much stronger.

The federal-officer-removal statute, 28 U.S.C. § 1442(a)(1), provides:

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to [federal] district court. . . :

The United States or any agency thereof or any officer (or any person acting under that officer) of the United States . . . in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

Federal-officer removal dates back to efforts in 1815, 1833, and during the Civil War to overcome various types of extreme state resistance to federal authority. In order to protect the capacity of federal officers to do their jobs, if a state charged them with a crime for some act relating to their duties as federal officers, the officer could remove the case to federal court. Trump may well have a solid argument for removal, given how much of his charged conduct in the case consists of things like meetings at the White House in the Oval Office with state legislators and the vice president. This is far more directly connected to his job than is the Manhattan case, the removal of which a federal court rejected, and which concerns entries in the books of Trump’s private business. The only real connections between these entries and Trump’s job as president are that they were made while he was president and they related at most to his campaign, not his official duties.

Even if Trump’s efforts in 2020–21 are read narrowly as campaign activities rather than presidential ones, however, then–assistant attorney general Jeffrey Clark is unambiguously charged with criminal liability for acts under color of his office — indeed, acts that Jack Smith also charges as abuses of Clark’s office. The 98th “overt act” in furtherance of the conspiracy charged in the RICO count is as follows:

On or about the 28th day of December 2020, JEFFREY BOSSERT CLARK attempted to commit the felony offense of FALSE STATEMENTS AND WRITINGS, in violation of O.C.G.A. § 16-10-20, in Fulton County, Georgia, by knowingly and willfully making a false writing and document knowing the same to contain the false statement that the United States Department of Justice had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia,” said statement being within the jurisdiction of the Office of the Georgia Secretary of State and the Georgia Bureau of Investigation, departments and agencies of state government, and county and city law enforcement agencies;

And on or about the 28th day of December 2020, JEFFREY BOSSERT CLARK sent an e-mail to Acting United States Attorney General Jeffrey Rosen and Acting United States Deputy Attorney General Richard Donoghue and requested authorization to send said false writing and document to Georgia Governor Brian Kemp, Speaker of the Georgia House of Representatives David Ralston, and President Pro Tempore of the Georgia Senate Butch Miller, which constitutes a substantial step toward the commission of False Statements and Writings, O.C.G.A. § 16-10—20. This was an act of racketeering activity under O.C.G.A. § 16-14-3(5)(A)(xxii) and an overt act in furtherance of the conspiracy.

Count 22 of the indictment charges, as a stand-alone felony, acts undertaken by Clark as assistant attorney general under the imprimatur of the Department of Justice:

JEFFREY BOSSERT CLARK [is charged] with the offense of CRIMINAL ATTEMPT TO COMMIT FALSE STATEMENTS AND WRITINGS, O.C.G.A. §§ 16-4-1 & 16-10-20 . . . [when] on and between the 28th day of December 2020 and the 2nd day of January 2021, . . . [Clark] made a false writing and document knowing the same to contain the false statement that the United States Department of Justice had “identified significant concerns that may have impacted the outcome of the election in multiple State’s, including the State of Georgia.”. . .

And, on or about the 28th day of December 2020, [Clark] sent an e-mail to Acting United States Attorney General Jeffrey Rosen and Acting United States Deputy Attorney General Richard Donoghue and requested authorization to send said false writing and document to Georgia Governor Brian Kemp, Speaker of the Georgia House of Representatives David Ralston, and President Pro Tempore of the Georgia Senate Butch Miller;

And, on or about the 2nd day of January 2021, [Clark] met with Acting United States Attorney General Jeffrey Rosen and Acting United States Deputy Attorney General Richard Donoghue and requested authorization to send said false writing and document to [the same Georgia officials];

And said acts constituted substantial steps toward the commission of False Statements and Writings, O.C.G.A. § 16-10-20, and said conduct committed outside the state of Georgia constituted an attempt to commit a crime within the state of Georgia . . . contrary to the laws of said State.

One assumes that the defendants in this case would much prefer a jury pool selected in the Northern District of Georgia than one limited to Fulton County, and the federal system, where Willis and her prosecutors are less familiar with the rules and the judges. (On the other hand, it could deprive them of going to the Georgia appellate courts, which are even more dominated by Republican and conservative judges than is the Eleventh Circuit.)