Fulton County Superior Court Judge Robert McBurney is planning a Sept. 8 release of a special grand jury’s report on the 2020 election interference case.

Fulton County Superior Court Judge Robert McBurney is planning a Sept. 8 release of a special grand jury’s report on the 2020 election interference case.

Credit: Stanley Dunlap/Georgia Recorder

It’s been a busy few weeks in two Atlanta courtrooms, where the next phase of legal battles are playing out for 19 people accused of a criminal conspiracy to overturn Georgia’s 2020 election.

All 19 waived arraignment and entered not guilty pleas before the Sept. 6 arraignment hearing date. Some defendants want a speedy trial that could start by the end of October, while others, like former President Donald Trump, want their cases to be separated and on a slower track.

Meanwhile, defendants like Trump’s former chief of staff Mark Meadows are arguing their charges should be removed to federal court and dismissed because they can’t face prosecution for doing their jobs as federal officials.

The questions raised by this rarely used defense could set new legal precedent, and further complicate an already-complex case.

On this episode, we talk with Georgia State University law professor Anthony Michael Kreis about Meadows’ hearing and the slew of motions that mark the latest maneuverings within the election interference case.

Kreis was one of the first people outside the federal courthouse in downtown Atlanta last Monday with other Georgia State colleagues.

Meadows’ lawyers were set to face off against the Fulton County DA’s office in one of the first legal battles stemming from the 19-person indictment alleging a criminal racketeering conspiracy to reverse Georgia’s 2020 election results.

The hearing was over a rarely used federal law that would allow Meadows to move his case from Fulton County Superior Court into the Northern District of Georgia federal court, and Kreis figuratively and literally had a front row seat.

"It was pretty fascinating," he said. "It was me, a handful of Georgia State law professors, a reporter for The New York Times and then right next to him, Donald Trump's brand new attorney for his litigation here in Georgia. So we had quite an interesting little front row going on there. But it was certainly a jam-packed hearing."

I was also at the hearing, but had to sit in an audio-only overflow courtroom because of the sheer interest in the case. Behind me sat several lawyers for other defendants in the case, taking notes and making observations about the strengths and weaknesses of the arguments being presented.

Unlike the proceedings in Fulton County Superior Court, where a judge said all Trump indictment-related hearings would be televised and streamed on YouTube, federal court does not allow phones or laptops inside.

So what exactly was Meadows doing in federal court Monday?

"The idea is that if someone is being sued or there are criminal charges pressed against somebody for something that related to the work as a federal officer, we don't want that to necessarily be in state court because there are a lot of biases and prejudices that might come along in a state court," Kreis said about the removal process.

Meadows is accused of participating in a racketeering conspiracy to overturn Georgia’s 2020 presidential election and also the crime of solicitation of violation of oath by public officer. He participated in and helped organize the call between Trump and Republican Secretary of State Brad Raffensperger where the former president pressured Raffensperger to find votes and change the outcome of the 2020 election.

There are nearly a dozen so-called overt acts that mention Meadows in the 98-page indictment, including: his appearance at a Georgia Bureau of Investigation-led audit of absentee ballot envelope signatures in Cobb County; participation in meetings with lawmakers that sought to overturn results in their home states; and facilitating another call between Trump and a Georgia official, then-chief elections investigator Frances Watson.

Meadows took observers by surprise when he took the witness stand himself.

That allowed him to dispute some of the things prosecutors allege he did as part of a plot to reverse the election results through illegal means while also making the argument that everything he did was part of his job duties as chief of staff.

In order to remove the case to federal court — which could bring about a slightly more conservative jury and be easier to dismiss because of current federal rules — Meadows has to show three things: One, that he was an officer of the United States; two, that he faces charges stemming from actions committed under that office; and three, that he raises a "colorable federal offense." 

There’s no denying that Meadows, as the chief of staff to the president of the United States, was a federal officer.

But what about the other prongs?

"Mark Meadows argued that there's a lot of different things that the chief of staff does in his official capacity in order to serve the president of the United States," Kreis said. "That includes arranging meetings, it includes getting contact information, it includes dropping in on meetings in order to just be somewhat aware of what the president is up to. It also means dropping in on meetings in order to wrestle the president away and keep him on schedule."

Kreis said that listening to Meadows speak broadly and generally, then he could argue anything that was allegedly criminal in Georgia was part of his official job duties.

Take one of the “overt acts” that includes a meeting between Trump, his lawyers and Pennsylvania legislators to discuss ways to overturn that state's election results. Meadows told the court his only involvement was telling some of the people present they had to leave because they tested positive for the coronavirus.

He also stressed his job as one of gatekeeping the time and attention of Trump, saying, quote, "there was a time where I felt like my phone number was plastered on every bathroom wall in America" and that the issue of Georgia’s election results in particular was, quote, "consuming the president's time and thoughts," getting in the way of handling the peaceful transfer of power to then-President elect Joe Biden.

So what the judge has to consider with analyzing the call, for example, is a more granular level of detail.

"Was he engaging in just kind of putting two people together who who wanted to talk together, or was he coordinating with campaign officials and furthering an interest of the Donald Trump for President campaign and not really doing something that was in the interest of the federal government?" Kreis explained. "That's where all this fight is. Because if you take it from the broadest level of abstraction, all of the things that he did were arguably parts of things that the chief of staff would be doing as as chief of staff. But if you look at it from a more narrow perspective, exactly who was he talking to and when and why?"

On the DA’s side, lawyers there argue that Meadows’ actions were part of an illegal conspiracy that weren’t part of his job duties, because they were political in nature, seeking to reverse an election outcome and not protected by federal law.

"With every act that they alleged was part of an unlawful scheme, the DA's office asked Meadows, 'What federal interests did you advance, what federal interest was there when you did these things, and if there was a federal interest? What kinds of actions did you take that reassure us that there is a federal interest?'" Kreis said.

Prosecutors also allege Meadows’ actions violate the Hatch Act, a federal law that prevents federal employees from electioneering on the job. They also argue Meadows' varying efforts, such as showing up unannounced to a GBI-led audit of absentee ballot envelopes in Cobb County, organizing a call between Trump and chief investigator Frances Watson, and the Trump-Raffensperger call were all done outside of his responsibilities as chief of staff and that there was no federal authority behind these activities, ergo the case should stay in state court.

Questioning also zeroed in on Meadows' use of "we" in phone calls, text messages and emails about activities related to Trump's re-election campaign and efforts to reverse his defeat, though Meadows claimed it was a deferential colloquialism and not indicative of any coordination or allegiance to the campaign.

Kreis said there are difficult questions Judge Steve Jones will have to wrangle with when deciding what to do about Meadows and at least four other defendants that have filed removal notices, and it’s just the tip of the iceberg when considering the larger racketeering case.

"There's a lot of mess here," he said. "There's precedent out there, and this is not the most rarest of proceedings ever — but it's particularly rare in this context. And the other quirk that makes it more difficult is Georgia RICO, because unlike other potential criminal acts, which are just — which might get charged as discrete acts of criminality, Georgia RICO and conspiracy law generally includes a lot of acts that may not necessarily be on their own criminal. They only become criminal in the broader context of of how they have how they're used."

In other words, Meadows may have done things outside his job duties and not covered by removal protection, but other things could be protected and is not a clear-cut answer.

"I think it's a complicated issue; I think it's it's something that's unique in many ways because of it being a criminal law issue and because it's a Georgia RICO issue," Kreis said. "I don't envy Judge Jones. It's going to be a very difficult case. And I think folks who think it's a really easy decision one way or the other, you know, I think that they might be a little reductive in their analysis."

Beyond the big questions over removal, there are other pressing petitions on the court docket, like requests for speedy trial, determining who gets tried together and who is separated from the rest and more that Fulton County judge Scott McAffee will have to deal with.

In fact, by the time you listen to and read this episode there will probably be new filings and rulings that replace what we’ve already talked about. But that’s why you’ll have to stay tuned and keep listening to the show.


On the next episode of Battleground: Ballot Box

Donald Trump and his allies have seized on an effort by a fringe freshman lawmaker seeking to call a special legislative session to punish the prosecutor who charged the former president. Gov. Brian Kemp and other top Republicans pushed back.

We look at further fallout from the indictments that have deepened the divide between a small but crucial part of the GOP electorate and those in charge.

Battleground: Ballot Box is a production of Georgia Public Broadcasting and is produced by Chase McGee. Our engineer is Jake Cook, our editor is Josephine Bennett and the theme music was created by me, Stephen Fowler. Subscribe to our show at GPB.org/battleground or anywhere you get podcasts.