Former White House Chief of Staff Mark Meadows may have hit a wall in his attempt to remove his Georgia election conspiracy case to federal court.
In a column for Just Security, ethics expert Walter Shaub, legal expert Norman Eisen, and former Senate Judiciary Committee law clerk Joshua Kolb said Meadows was unlikely to succeed in his bid because of a provision in the Hatch Act.
Federal District Court Judge Steve C. Jones is expected to hear Meadows' motion for removal on Monday. Meadows has been charged in Georgia for allegedly conspiring to overturn the 2020 presidential election.
"Even though the legal hurdle is low and the law is favorable to federal officers, Meadows faces a seemingly insurmountable barrier," the authors write. "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."
Meadows must show that he acted "under authority of federal law in the discharge of his duty and only by reason thereof," according to existing case law.
But the Hatch Act "negates the possibility of the link Meadows proposes," the Just Security column states. "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.'"
The authors observe Meadows was not acting "out of his duty to enforce federal law" as his motion claims.
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' motion to remove the case would "turn the law on its head," the authors argue. "Moreover, Meadows' attempt to get the case dismissed by raising federal defenses may have fatally sabotaged his removal effort.""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," the column adds. "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.'"
Read the entire column here.
