Why Trump, other Georgia defendants might try to get cases removed to federal court

Mark Meadows has already filed a removal motion.

September 7, 2023, 3:34 PM

Former President Donald Trump may soon seek to have his Georgia election interference case removed to federal court.

Attorneys for Trump notified Georgia state court in Fulton County on Thursday that they may file a removal motion, according to a new court filing.

Trump would be following in he footsteps of former White House chief of staff Mark Meadows and five other defendants charged in the sprawling racketeering case brought by Fulton County District Attorney Fani Willis.

The potential advantages for Trump in doing so, attorneys and law professors said, would be the possibility of a more sympathetic jury pool and the potential delays such a move could cause.

The law allows federal officers facing state charges to have the prosecution moved to federal court if the conduct at issue was done under the "color of" their office, or within the ambit of their professional responsibilities.

Trump tried this maneuver in New York, where he's charged with falsifying business records in connection to a hush money payment to adult film actress Stormy Daniels before the 2016 presidential election. A federal judge rejected the attempt last month, stating he failed to show the alleged conduct fell under the scope of his official duties.

Several attorneys and legal experts who spoke to ABC News said Trump may have a better argument in Georgia than he did in New York for moving the case to federal court, but still questioned whether it would be a winning strategy.

"He's going to argue that as president he believed there was fraud in the election and he had a duty to do something about it," said Clark D. Cunningham, a law professor at the University of Georgia.

PHOTO: Former President Donald Trump delivers remarks during the Georgia state GOP convention at the Columbus Convention and Trade Center, June 10, 2023, in Columbus, Ga.
Former President Donald Trump delivers remarks during the Georgia state GOP convention at the Columbus Convention and Trade Center, June 10, 2023, in Columbus, Ga.
Anna Moneymaker/Getty Images

Cunningham said he believed Trump's alleged efforts to undo his election loss in Georgia was done as a candidate for reelection rather than for his role as president, but that Trump has "enough of an argument to drag things out."

There is not a lot of precedent to draw on, attorneys said, because the removal statute is not as commonly used in criminal cases as it is in civil cases.

"This rarely happens on the criminal side -- rarely," said Neama Rahmani, a former federal prosecutor and president of the law firm West Coast Trial Lawyers.

Why Trump and others would want to move the case

There are several reasons why Trump and other defendants may seek to move the case out of Georgia state court and into a federal jurisdiction, attorneys and law scholars said.

One rationale would be to try to get a broader pool of potential jurors. Trump has claimed he won't be able to get a fair jury in New York and Washington, and is likely to make the same assertion in heavily-Democratic Fulton County.

If the case were moved to federal court, it would wind up in the Northern District of Georgia, according to Atlanta-based attorney and trial consultant Denise de La Rue.

One likely scenario is that it will land in the district's Atlanta division, which encompasses 10 counties -- including areas where Trump performed better in the 2020 election than he did in Fulton County. Another possibility, though one de La Rue said is more remote, would be that a jury is drawn from the entire district and include more rural and conservative towns.

Similarly, moving it to federal court means a new judge will take over the case. Trump, as president, appointed four of the 15 district court judges currently presiding in the Northern District of Georgia.

PHOTO: The Richard B. Russell Federal Building is seen in Atlanta on July 21, 2012.
The Richard B. Russell Federal Building is seen in Atlanta on July 21, 2012.
Mike Stewart/AP

Another reason to seek to move the case is to try to hold up the proceedings.

"Delay is his friend," Rahmani said of Trump. "Even if he loses, he's going to slow the process down."

The motion could take months to resolve, Cunningham said, noting Trump and other defendants could take their cause to the 11th Circuit of Appeals or even to the U.S. Supreme Court.

"And then I think that the whole issue of where the case is tried could drag on for at least a year, maybe longer because it's unprecedented," he said.

Still, the attorneys and law scholars who spoke with ABC News agreed Trump and other defendants would be tried under state law with Fulton District Attorney Fani Willis' team still leading the prosecution.

"That means that if he were to be convicted, he would then be convicted under state laws," said Michael Dorf, a constitutional law professor at Cornell University. "So, the federal pardon power would be unavailable."

Under Georgia law, complete pardons are only granted after completion of a sentence. The RICO charges Trump and 18 others face carry a minimum mandatory sentence of five years.

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