On Monday, federal district court Judge Steve C. Jones held an evidentiary hearing on Mark Meadows’ effort to remove Fulton County Georgia’s prosecution of him to federal court. On Tuesday, Judge Jones requested supplemental briefing on the following issue:

“Count 1 of the Indictment (pertaining to Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-(c)) contains a number of overt acts attributed to Mr. Meadows. Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office, be sufficient for federal removal of a criminal prosecution under 28 U.S.C. § 1442(a)(1)?”

The answer to the court’s question is no. A finding that one or more, but not all, of the overt acts alleged in the indictment was taken by Meadows under the color of his office would not be sufficient for federal removal of his Georgia state criminal prosecution under 28 U.S.C. § 1442(a)(1).

This conclusion is supported by several reasons, each of which independently establishes that removal is not warranted on the basis of the possibility raised by the court’s question:

1. Even if a subset of Meadows’ overt acts occurred under the color of his office, as the court’s question stipulates, the connection between the charged conduct and his office would still be “too tenuous to support removal.” Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 234 (4th Cir. 2022).

a) Meadows must “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 functions.” Jefferson County v Acker, 527 U.S. 423, 447 (1999) (Scalia, J., concurring in part and dissenting in part). See also Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012) (citing Acker, upholding removal because “the gravamen of the claim” occurred while the defendant was acting under color of federal authority); Castillo v. Snyders, 497 F.Supp. 3d 299 (N.D. Ill. 2020) (evaluating totality of defendant’s conduct and finding he established acting under color of his authority because “the gravamen of [Plaintiff’s] claims” arise from defendant’s conduct to achieve a federal objective).

b) Meadows previously acknowledged that “[a]ll the substantive allegations in the Indictment concern unquestionably political activity” and “all of the alleged conduct as to Mr. Meadows relates to protected 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) at pp. 23-24 (Case No. 1:23-cv-3621)). Meadows appears to concede here that the entire essence of the charged conduct – in other words, the gravamen – was political. Therefore, those actions could not have occurred under the color of his office.

c) Even if one (or more) isolated overt act among the expansive course of political conduct was committed under the color of his official governmental authority, that drop of official action does not convert the entire body of his conduct into the sort of federal governmental action – or provide a defense of immunity against the charged conduct – that warrants protection from malicious state prosecution.

2. In order to warrant federal removal of a state criminal prosecution, a defendant must establish: (1) that the defendant was an “officer, or any person acting under that officer, of the United States”; (2) that the defendant is charged “for or relating to any act under color of such office”; and (3) that the defendant has raised or will raise a “colorable federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989). See also Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999). Whatever the ultimate disposition of the first two prongs, a finding that one or more (but not all) of Meadows’ alleged overt acts occurred under the color of his office would not establish the third prong. Accordingly, because Meadows must establish a colorable federal defense, the possible finding in the court’s question posed (“a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office”) would not be sufficient for federal removal.

Put more pointedly, one or more overt acts under color of law would not provide a defense, or satisfy immunity from prosecution, for the alleged RICO conspiracy (nor for Count 28 in the indictment).

3. The charge against Meadows for violating GA Code § 16-14-4(c) does not require that Meadows have taken any overt act at all. As a result, the indictment states an offense under that statutory provision, even if it does not allege any overt act by Meadows – and thus it still does so regardless of whether any overt act alleged was taken under the color of Meadows’ office.

a) GA Code § 16-14-4(c) provides:

(c) It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when:

(1) He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy . . . .

Subsection (c)(1) thus requires only that (i) Meadows “conspire[d] to violate” one of the statute’s substantive provisions, and (ii) that Meadows or one of his co-conspirators committed an overt act in furtherance of the conspiracy. Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714, 728 (11th Cir. 2021) (“To violate Section 16-14-4(c), one must either commit an overt act to ‘effect the object of’ the endeavor or conspiracy or a co-conspirator must commit such an overt act. See O.C.G.A. § 16-14-4(c)(1)-(2).”) (emphasis added).

b) An overt act taken by Meadows is therefore not a necessary element of the offense with which he is charged in Count 1 of the indictment. “There must be causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his, not justified by his federal duty.” State of Maryland v. Soper, 270 U.S. 9, 33 (1926) (emphasis added). See also Galbert v. Shivley, 186 F. Supp. 150 (W.D. Ark. 1960) (“The test for removal under Section 1442(a)(1) is not whether the Government employee was acting in the performance of his duties but rather whether the act complained of was under color of such office or of any right, title or authority claimed under any Act of Congress.”).

c) A violation of subsection (c) does not require that any co-conspirator committed any “predicate act” – that is, a criminal offense that would serve as the basis of a violation of subsections (a) or (b). Subsections (a) and (b) are Georgia RICO’s substantive offenses, and as such they require the defendant to have committed two “predicate acts” that are violations of separate criminal statutes. Subsection (c), by contrast, criminalizes inchoate offenses – conspiracy or attempt to violate the statute’s substantive provisions. “To violate Section 16-14-4(c), one must ‘knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.’”J.C. v. I Shri Khodiyar, LLC, 624 F. Supp. 3d 1307, 1324 (N.D. Ga. 2022) (citing Wylie v. Denton, 323 Ga. App. 161, 746 S.E.2d 689, 693 (2013)). Subsection (c) thus does not require that the defendant or a co-conspirator commit a completed predicate offense. Moreover, subsection (c) does not even require that the conspiracy adopt a plan or purpose that the defendant commit the two predicate acts – only that the conspiracy adopt a plan or purpose that some member of the conspiracy commit two predicate acts.

d) Because any allegations that Mr. Meadows committed any overt acts are not elements of the offense with which he is charged, they are unnecessary to the indictment. Indeed, such allegations could be excised from the indictment, and it would still state an offense for violating § 16-14-4(c) against Meadows. Consider, hypothetically, if the indictment had not alleged Meadows messaged a member of Congress for state legislators’ contact information (per Act 6). The defendant could not raise the fact he had done so as a basis to remove the case to federal court. Such extraneous and unnecessary allegations cannot support removal.

4. There is no authority that directly supports the position that a single colorable overt act is sufficient. The civil case Mayor v. Cooper, as quoted by the Mesa court, is consistent with the State of Georgia’s position. Mesa states: “Cooper contended that the removal statute was unconstitutional. In upholding the statute’s constitutionality, we observed: ‘Nor is it any objection that questions are involved which are not all of a Federal character. If one of the latter exist, if there be a single such ingredient in the mass, it is sufficient. That element is decisive upon jurisdiction.” Mesa v. California, 489 U.S. 121, 129 (1989) (citing The Mayor v. Cooper, 6 Wall. 247, 252 (1868).

But Cooper, properly understood, appears to be addressing a concept similar to pendent jurisdiction in civil cases – by which a federal court is allowed to hear a state law claim that is closely related to a federal claim. Indeed, the Supreme Court recognized its relevance to pendent jurisdiction in Finley v. U.S., and it has been cited by numerous circuit courts in the context of sorting out pendent jurisdiction questions. See, e.g., Roco Carriers, Ltd. v. M/V Nurnberg Exp., 899 F.2d 1292 (2d Cir. 1990); Ortega v. Schramm, 922 F.2d 684, 689 (11th Cir. 1991); Iron Workers Mid-S. Pension Fund v. Terotechnology Corp., 891 F.2d 548 (5th Cir. 1990).) Thus, this jurisdictional issue is distinct from the one raised by Meadows’s effort to remove and the Court’s request for supplemental briefing. The court in Cooper says that “a single such ingredient” of “federal character” “is sufficient” to take the case into federal court; it does not say that such a single federal act would make it “necessary” to remove the entire case to federal court. Therefore under Cooper, if removal is fully satisfied for the charged or alleged conduct, then the fact that there were also nonfederal questions does not keep it from being removed. It does not follow from Cooper that any one overt act being under color of Meadows’s office would necessarily paint all of the charged conduct with its federal brush and force the entire case into federal court. Indeed, Cooper stands for the simple proposition that the federal court would need a wholly federal matter – here all three parts of the Mesa test satisfied, not a simple alleged act alone – which would naturally be sufficient for federal jurisdiction, and then to consider whether other pendent questions can be included. As such, Cooper cannot provide a justification for creating federal jurisdiction for Meadows. Moreover, Mesa does not cast Cooper in a new light more favorable to Meadows. Mesa did not expand upon or further explicate Cooper’s analysis and, even if it did, such reasoning would be dicta since the Mesa Court found that the defendants in that case did not establish a federal defense.

5. If the court finds that at least one (but not all) of the overt acts charged occurred under the color of Meadows’ federal office is sufficient for removal, the court should give the State of Georgia the opportunity to remove those alleged acts from the indictment or else to simply seek a superseding indictment without those alleged acts. As indicated above, Count 1 against Meadows could be sustained without any of the overt acts the DA initially included – thus such a change to the indictment would not be a material one. In Georgia, prosecutors have broad latitude in altering an indictment, certainly encompassing relatively minor changes such as these. See e.g., State v. Outen, 324 Ga. App. 457 (2013); Trimm v. State, 297 Ga. App. 861 (2009). It may be important for the district court to allow the overt act(s) to be stricken before issuing an order, if any, permitting removal to federal court. Such a step would avoid pending legal questions surrounding Fulton County’s ability to remand a case, post-removal, in order to supersede an indictment (an issue currently pending before the Eleventh Circuit in Heinze v. Georgia).

IMAGE: Former White House Chief of Staff Mark Meadows arrives for a gala and fundraising dinner at the National Building Museum in Washington, DC, on September 13, 2022. (STEFANI REYNOLDS/AFP via Getty Images)