Shortly after the Fulton County District Attorney charged Mark Meadows for alleged involvement in a criminal conspiracy to overturn the legitimate results of the 2020 election in Georgia, he sought to remove the case to federal court. On Monday, Aug. 28, federal district court Judge Steve C. Jones will hold an evidentiary hearing to evaluate Meadows’ filing. Even though the legal hurdle is low and the law is favorable to federal officers, Meadows faces a seemingly insurmountable barrier. In their briefs before Judge Jones, Meadows’ lawyers have remarkably conceded that “all the substantive allegations in the Indictment concern unquestionably political activity.” In the context of these charges, that should be fatal to Meadows’ claim for removal. A proper and straightforward understanding of the Hatch Act – which prohibits executive branch employees from interfering in elections–indicates that Meadows will not be able to meet his burden of showing the alleged conduct was connected to his official duties.
To remove the case to federal court, Meadows will need to show that (1) his charged conduct was for, or relating to, any act under the “color of his office” (as White House Chief of Staff) and (2) he has a “colorable federal defense” to the charges. Mesa v. California, 489 U.S. 121, 129 (1989). The first prong of the removal test is generally considered to have a low threshold in the Eleventh Circuit, “requir[ing] only a causal ‘connection’ or ‘association’ between the act in question and the federal office.” Georgia v. Heinze, 637 F. Supp. 3d 1316, 1323 (N.D. Ga. 2022) (citing Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1144 (11th Cir. 2017) (quoting In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Phila., 790 F.3d 457, 471 (3d Cir. 2015)).
As both the District Attorney and eight prominent judges and attorneys who served in Republican administrations explain in briefs before the court, Meadows must show “a causal connection between the charged conduct and asserted official authority,” Jefferson County v. Acker, 527 U.S. 423, 431 (1999), and that he acted “under authority of federal law in the discharge of his duty and only by reason thereof,” Maryland v. Soper, 270 U.S. 9, 33 (1926). Meadows’ reply brief in support of his effort to remove the case seeks to connect the charged conduct with the official authority of his former role as Chief of Staff to the President, arguing that these acts were “part of his service in that role.” Reply of Defendant Mark R. Meadows to the State of Georgia’s Response to his Notice of Removal at 1, State of Georgia v. Meadows (Aug. 23, 2023) (Case No. 1:23-cv-3621) (hereinafter “Def’s Reply”). Meadows, however, had no authority as Chief of Staff to engage in the charged conduct. He was subject to the Hatch Act, a law that clearly forbade all federal employees from engaging in the sort of conduct charged.
A provision of the Hatch Act, 5 U.S.C. § 7323(a)(1), negates the possibility of the link Meadows proposes. Put more strongly, the Hatch Act severs any evidentiary or legal thread with which Meadows could hope to tie the Chief of Staff’s official authority to the charged conduct. The law unambiguously prohibits the Chief of Staff from using “his official authority or influence for the purpose of interfering with or affecting the result of an election.” 5 U.S.C. § 7323(a)(1). To stitch together the severed thread between his conduct and his former role, Meadows tries in vain to pretend that the Hatch Act does not exist — or that it is inapplicable, unconstitutional, or amenable to violation by presidential aides. But that thread cannot be mended.
In tersely declaring “[t]he state is wrong” to point out that he could not have committed the charged conduct in his official capacity (Def’s Reply at 3), Meadows would have the court ignore this legal prohibition. The very purpose of the Hatch Act was to place political acts of the kind charged here beyond the reach of the office of Chief of Staff to the President. A person who holds the position of White House Chief of Staff may never use their official authority as a government employee to influence an election. We know this absolute bar well, as one of us served as Director of the U.S. Office of Government Ethics and another of us served as White House Special Counsel for Ethics and Government Reform. As a matter of established law, the Fulton County criminal charges allege acts that could have only been committed in a personal capacity. Those personal acts can have no “connection” or “association” with Meadows’ former federal office. That is why Meadows’ concession is fatal to his argument.
Attempting to create a “connection” between the charged acts and the authority of his former post, Meadows mischaracterizes the State’s argument as disputing whether his “conduct was actually required or properly considered part of his official duties” (Def’s Reply at 4). But he misses the State’s point. The State is not concerned merely with what was required or what was “properly considered” part of his job; the State is concerned with what the law prohibited. The Hatch Act flatly prohibits a Chief of Staff from committing the charged acts. And because the Hatch Act forbade that conduct, Meadows could not have been acting as Chief of Staff when he allegedly committed them. He had crossed the boundary between what a Chief of Staff may do and what Congress determined a Chief of Staff can never do. Contrary to his assertion “that the conduct had a connection to [his] official duties” (id. at 4), Congress permanently severed that conduct from the Chief of Staff role.
Turning to the second prong, Meadows argues that he has “a colorable defense arising out of [his] duty to enforce federal law,” (id. at 4 (quoting Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1145 (11th Cir. 2017))), and that “the Supremacy Clause provides immunity from ‘suits under state law against federal officials carrying out their executive duties,’” (id. (quoting Kordash v. United States, 51 F.4th 1289, 1293 (11th Cir. 2022))). But the conduct did not “aris[e] out of his duty to enforce federal law,” it arose out of his failure to comply with federal law. The Hatch Act established the duty to refrain from use of his official authority to influence the result of an election. 5 U.S.C. § 7323(a)(1). Put simply, Meadows cannot meet his burden of demonstrating a connection between the conduct and his duties because his duty was specifically to avoid committing the conduct. He cannot show he was “carrying out” his “executive duties” because his duty was to carry out a law prohibiting that conduct.
Meadows tries to turn the law on its head by arguing that “[n]either the duties of the Chief of Staff nor the laws and Constitution of the United States draw a clean line between federal authority, on the one hand, and elections and politics, on the other” (Def’s Reply at 5). In fact, the opposite is true. The line, drawn plainly in the Hatch Act, could not be clearer: “an employee may not . . . use his official authority or influence for the purpose of interfering with or affecting the result of an election,” 5 U.S.C. § 7323(a)(1). On one side of that clear line lay a range of actions not prohibited by the Hatch Act; on the other side lay the range of prohibited actions that could never have a connection to his Chief of Staff duties.
The reply brief attempts to further muddy the distinction between the Chief of Staff’s official and unofficial conduct, suggesting that the Chief of Staff does not “take off” his “‘official’ hat[] just because the President takes off his” (Def’s Reply at 11). As the President’s “principal assistant and advisor,” Meadows argues, the Chief of Staff “did not stop assisting the President just because the President was doing something political” (id.) Perhaps so – but when that action is expressly forbidden by the Hatch Act, it is no longer official and thus as a matter of federal law it necessarily cannot be a basis for removal. Federal statutes, as is well-established, must be read together. Wachovia Bank, Nat’l Ass’n v. Schmidt, 546 U.S. 303, 316 (2006) (quoting Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)) (“[S]tatutes addressing the same subject matter generally should be read ‘as if they were one law.’”).
Moreover, the example Meadows provides, in his attempt to argue that he was acting in his official capacity, actually exposes the clearly unofficial nature of the charged conduct. The reply brief notes that “certain White House personnel must travel with the President and do so in their official capacities, even when the President travels to a campaign rally; one such essential traveler is the Chief of Staff” (Def’s Reply at 11). But this strained analogy fails. Evidencing that such campaign activities fall outside the official role of a Chief of Staff, a presidential campaign must reimburse the government when presidential aides accompany the President on political travel. 11 C.F.R. § 100.93(e); 41 C.F.R. § 301-10.264. More to the point, meddling in the administration of a presidential election, even at the behest of the President, is not equivalent to providing personal support for the President in his travels. It is a corruption of the meaning of “assisting” in this context, akin to suggesting there is an equivalence between bringing a President his food and poisoning the food of a rival at the President’s direction. The Hatch Act itself provides this sharp demarcation, expressly separating out the electioneering activities and election interference charged by DA Willis from being official conduct.
The reply brief takes several fruitless turns in search of the missing link between Meadows’ conduct and his former job. Meadows argues that the federal government has some role in elections the Constitution entrusts to states (Def’s Reply at 6-7), but what mattered was his own official authority, not that of the government at large — and the Hatch Act stripped him of any authority to engage in the charged conduct. The reply flails in its engagement with the Hatch Act. It alludes to a former White House Counsel’s claim that “the Hatch Act does not apply” (emphasis in Def’s Reply at 9 (quoting Office of Special Counsel Report)). But apply to what? The full quote in context does not help Meadows: “The Trump White House Counsel’s Office … made two primary arguments against finding Hatch Act violations. The first was that the Hatch Act does not apply, and was never meant to apply, to ‘assertions of fact . . . that neither advocate for or against a political party or candidate’ or to ‘commentary on significant policy issues’” (Office of Special Counsel Report (emphasis added)). Meadows’ reply brief then takes a jab at the Hatch Act’s constitutionality (“findings [of a Hatch Act violation by the Office of Special Counsel (OSC)] would ‘violate employee’s free speech rights under the First Amendment”), and seems to almost endorse law-breaking in the absence of effective enforcement mechanisms (“OSC also acknowledges that for commissioned officers like the Chief of Staff, it ‘may only submit a report to the president’; it does not have enforcement authority”(Id. at 9)). But a former White House Counsel’s thoughts on that subject are, in any case, irrelevant; the Supreme Court has already ruled (twice) that the Hatch Act is constitutional (United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); United Public Workers v. Mitchell, 330 U.S. 75 (1947)), and the reply’s seeming indifference to lawful limits raises more concerns than answers about Meadows’ compliance with his ethical duty of loyalty to the laws of the United States. See 5 C.F.R. § 2635.101(a).
The reply brief next offers musings on presidential authority with no real import (Def’s Reply at 9-10). Setting aside Meadows’ maximalist view of the unitary executive theory, this discussion of the presidency has no bearing on his former role as Chief of Staff. Among the innumerable other differences between a President and a Chief of Staff, there is an important distinction to be drawn with respect to 5 U.S.C. § 7323(a)(1): that law does not apply to the President, but it applies to the President’s Chief of Staff. (This is not to say that a President could lawfully use his power to influence the result of an election, only that 5 U.S.C. § 7323(a)(1) severed the connection between Meadows’ conduct and his role as Chief of Staff.) The extent to which this point is apparently lost on Meadows (to be blunt, but candid) is indicated by his admission that, “[a]s Chief of Staff, Mr. Meadows did not stop assisting the President just because the President was doing something personal or political” (Def’s Reply at 9). Indeed, he did not stop. That is a problem for Meadows because 5 U.S.C. § 7323(a)(1) took him out of the Chief of Staff role, as he followed the President’s descent into what the State alleges was rank criminality. As we explained in the book Overcoming Trumpery, and as DA Fani Willis also points out, the partisan political adventure underlying the State’s charges are part of a long history of Trump and Meadows veering outside the lines of the Hatch Act – and, consequently, of their official capacities. With its enactment of the Hatch Act, Congress forbade Meadows from engaging in the charged political conduct. Once again, he could continue to assist Trump as a candidate, but he could in no way do so by use of his official authority.
Meadows’ attempt to distinguish cases cited by the State is equally unavailing. He takes issue with the State’s reference to Baucom v. Martin, 677 F.2d 1346, 1350 (11th Cir. 1982), which held that a defendant’s claim of Supremacy Clause immunity is negated by evidence that they acted out of “personal interest, malice, actual criminal intent, or for any other reason than to do [their] duty as [they] saw it” (Def’s Reply at 11-12). His brief states that “Baucom supports removal—and immunity—because it shows that he is protected so long as he had a good-faith belief, even mistaken, that his conduct was within ‘his duty as he saw it’”(Id. at 12). But Meadows could not have had a good-faith belief that his conduct was within his duty, for the Hatch Act expressly prohibited the conduct and stripped him of any authority to engage in it, 5 U.S.C. § 7323(a)(1).
Meadows likewise takes issue with the references to Texas v. Kleinert, 855 F.3d 305 (5th Cir. 2017); Reed v. Madden, 87 F.2d 846 (8th Cir. 1937); and Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977), arguing that “[e]ach case turned on whether the federal official fired the fatal shot in a good faith exercise of federal duties as opposed to out of criminal malice” (Def’s Reply at 12). But here, too, he ignores the Hatch Act. He could not have thought that the charged conduct was a “good faith exercise of federal duties” because the Hatch Act forbade him to engage in that conduct, 5 U.S.C. § 7323(a)(1). Though he argues that these cases “have nothing to do with the supposed line between official federal duties and unofficial political activity,” they, in fact, have everything to do with that line. As a matter of law, one who acts to interfere with the result of an election is not acting in an official capacity. 5 U.S.C. § 7323(a)(1). And the cited cases all stand for the proposition that, because Meadows acted for a purpose other than his official duty, his claim of Supremacy Clause immunity is negated.
Meadows cannot plead ignorance of the Hatch Act. Far from being unaware of it, he has been open about his knowledge of and disrespect for that law. Responding to public concern about the Hatch Act in August 2020, Meadows stated: “So listen, this is a lot of hoopla that’s being made about things, mainly because the convention has been so unbelievably successful.” He revealed his contempt for the Hatch Act by saying: “Nobody outside of the Beltway really cares. They expect that Donald Trump is going to promote Republican values and they would expect that Barack Obama, when he was in office, that he would do the same for Democrats.” (Michael Crowley, White House chief of staff: ‘Nobody outside of the Beltway really cares’ about possible Hatch Act violations, New York Times, Aug. 26, 2020). After Special Counsel Henry Kerner, whose job was to investigate Hatch Act violations, accused presidential aide Kellyanne Conway of violating the Hatch Act, a news report described an acrimonious exchange between Meadows and Kerner: “Rep. Mark Meadows (N.C.) accused Kerner of acting out of personal pique (‘Kellyanne Conway made you mad’) and of acting because of ‘heat from the media and from some on the left.’” During a congressional hearing, Meadows told Special Counsel Kerner, “I know the Hatch Act statute. I actually read it.” Violations of the Hatch Act Under the Trump Administration: Hearing Before the Committee on Oversight And Reform, House of Representatives, 116th Cong. 28 (2019).
Moreover, Meadows’ attempt to get the case dismissed by raising federal defenses may have fatally sabotaged his removal effort. Meadows separately contends, in arguments he did not initially raise in his notice of removal, that even if he were not immune under the Supremacy Clause, his acts would still be protected under the First and Fourteenth Amendments. His brief in support of his motion to dismiss states, “All of the alleged conduct as to Mr. Meadows relates to protected political activity”; it also states, “All the substantive allegations in the Indictment concern unquestionably political activity” (Corrected Memorandum in Support of Motion to Dismiss Charges Against Defendant Mark R. Meadows Based on Supremacy Clause Immunity, State of Georgia v. Meadows (Aug. 19, 2023) (Case No. 1:23-cv-3621)). By trying to show that he has a colorable federal defense that covers his conduct in the post-election period, Meadows gives the game away: he admits that all the alleged activity was fundamentally political. Indeed, he goes on to provide examples of this activity including “conduct of campaigns for political office,” and “to ‘vigorously and tirelessly’ advocate for one’s own election.” Meadows, in essence, has admitted that he cannot clear the first prong of the removal test; he has undermined any potential for showing that the charged conduct was for, or related to, any act under the “color of his office.”
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Meadows has not so far met his burden in seeking to remove his criminal case to federal court, and he likely cannot meet it at the evidentiary hearing. While that burden may not be especially high, “the person seeking the benefit of [federal officer removal] should be candid, specific and positive in explaining his relation to the transaction growing out of which he has been indicted, and in showing that his relation to it was confined to his acts as an officer.” Colorado v. Symes, 286 U.S. 510, 520 (1932). Meadows cannot show that the charged conduct was “confined to his acts as an officer” because the Hatch Act — a federal law with which he admits familiarity — forbade him from acting as Chief of Staff when committing charged conduct. He did not act in relation to his official capacity because, as a matter of law, he could not have done so. The Hatch Act stripped him of the cloak of official authority at all times relevant to the charges. His apparent disrespect for that authority-stripping law, which his reply contains further evidence of, cannot substitute for the requisite connection between the conduct and his official role. As the State of Georgia urged the court, “His Notice of Removal must fail.”