Federal Officer Removal and Immunity to State Prosecution
Almost immediately following the Georgia indictment filed against Donald Trump and his various alleged co-conspirators, one of those alleged co-conspirators, Mark Meadows, sought to remove the case to federal court. On Wednesday, Federal District Judge Steve C. Jones issued an order scheduling a hearing on the Meadows removal motion for Monday August 28. DA Fani Willis has until Wednesday August 23 to file a written response to the motion if she so chooses. In today's essay, I'll address some of the key questions likely to arise at the hearing.
The federal officer removal statute ("FORS") allows a federal officer who is civilly sued or criminally prosecuted to have the proceedings transferred to federal court upon satisfying two criteria. First, as set forth expressly in the FORS, the officer must have been acting "under color of" their office. Second, pursuant to the Supreme Court's holding in Mesa v. California (1989) and the cases the Court cited therein, the defendant must also raise a "colorable federal defense." In Mesa, California prosecuted the defendants--who were postal workers--for various criminal traffic infractions. There was no dispute that the defendants were on duty and thus acting under color of their federal office. However, they raised no federal defense and thus were not permitted to remove.
Meadows claims that when he went down to Georgia, he was acting under color of his then-office--as White House Chief of Staff. Whether that's right depends on how specifically one defines what Meadows was up to. He alleges in his motion that his duties as Chief of Staff included "communicating with state lawmakers and officials." But one might think that whether the particular communications count as official acts depends at least in part on their contents. Suppose Trump had instructed Meadows to communicate a death threat to Georgia Secretary of State Brad Raffensperger: "Find an additional 11,780 Trump votes or you'll sleep with the fishes." Meadows would then be "communicating with [a] state official" on behalf of the person who was President, but because the threatened action is so far outside the ordinary channels of federal action, we might say that it would not count as under color of office.
The key to that conclusion is not simply that the threatened action would be illegal (although it obviously would be); it's that the threat would not utilize official channels. A large body of case law construes 42 U.S.C. § 1983, which includes a threshold requirement that the defendant must have acted "under color of state law" in order to be subject to suit. The § 1983 cases make clear that a defendant state or local official can act in violation of state law while still acting under color of state law. But that doesn't mean that everything that a state or local officer does in violation of law is under color of state law. If an off-duty police officer out of uniform commits a homicide or drives drunk, that alone doesn't mean he has acted under color of state law.
Thus, the evidentiary hearing could focus on exactly what the official duties of Meadows were and whether the actions he allegedly took in furtherance of the election-overturning conspiracy fell within those duties. If not, his removal motion could fail at step one.
I'll come to step two in a moment, but first it's worth noting that Trump has an even weaker case at step one than Meadows does. Meadows can (and does) argue that because he was acting at the President's direction, he was acting under color of his office as Chief of Staff. But Trump can't say that he was acting under anyone's direction. Unless we say that everything the President does is under color of office--l’état, c’est moi--some ultra vires acts of the person who happens to be president are not under color of office.
Suppose that Trump and his alleged co-conspirators attempt in 2024 what they attempted in 2020 (which is, alas, all too real a possibility). Trump the private citizen/candidate and his co-conspirators could take nearly all of the exact same actions--soliciting fake electors, leaning on state executive and legislative officials to change vote tallies, etc.--because nearly everything they did in 2020 was on behalf of the campaign, not the Presidency or the United States.
To be sure, that fact alone isn't dispositive. A driver of a FedEx truck would not be acting under color of federal office even when the driver of a USPS truck who did the exact same thing would be. So holding federal office makes a difference. My point for now is that it can't make the whole difference. Accordingly, even on reflection, I think that Trump's under-color-of-office argument is weaker than that of Meadows, which is itself at best uncertain.
What about the second requirement--that the defendant must assert a colorable federal defense? Quoting a 1989 Eleventh Circuit case, the scheduling order states that "the federal actor or agency being challenged must raise a colorable defense arising out of its duty to enforce federal law." Taken literally, that doesn't apply here. Neither Meadows nor any of his alleged co-conspirators even claim that they were enforcing federal law. The quote reflects the fact that many of the most important criminal cases involving the FORS arise when a federal law enforcement official uses force in the course of the performance of his duties and is then charged with violating state law.
Although the order cites an appeals court decision, the ultimate source of the language in question is the Supreme Court's 1969 ruling in Willingham v. Morgan. There the Court discussed the long history of federal officer removal, noting that Congress first authorized the practice in 1815 as "part of an attempt to enforce an embargo on trade with England over the opposition of the New England States, where the War of 1812 was quite unpopular." The Court also discussed the nullification crisis, the Civil War, and state opposition to the enforcement of federal revenue laws. State prosecutions of federal officers in none of those circumstances seems like a close parallel to the Georgia indictment.
Nonetheless, the Meadows motion asserts as a federal defense that the supremacy of federal law precludes state prosecution. He cites Eleventh Circuit cases and the Supreme Court's 1890 decision in In Re Neagle. There, the Court mostly construed the habeas corpus statute to find that a federal marshal who used deadly force to protect a Supreme Court Justice against a would-be assassin was enforcing federal law and thus shielded from state prosecution. Neagle has subsequently been cited for a broad immunity of federal officers from state prosecution, liability, or regulation. A fairly remarkable example is Johnson v. Maryland (1920), where Justice Oliver Wendell Holmes, Jr., writing for the majority, delivered an opinion that, in the context of a criminal prosecution for driving without a license, invalidated the conviction of a US Postal worker on the ground that states may not require federal officers to obtain drivers' licenses.
In my view, Johnson was wrongly decided, at least on the assumption that Maryland was requiring no more of the postal truck driver than it would have required of any other driver of a comparable vehicle. But at least Justice Holmes acknowledged that "[o]f course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment." There must be some genuine state interference with the carrying out of federal functions.
From the face of the indictment, it is hardly clear that prosecution undercuts any such functions, given the wholly extracurricular nature of the alleged conspiracy. Perhaps the Meadows team will provide a fuller and more persuasive explanation before or during the hearing.
In the meantime, it's worth pausing over one point that seems to be causing considerable confusion. To satisfy the FORS, step 2 requires the raising of a "colorable" defense. A number of commentators have suggested that satisfying step 2 (in addition to step 1) virtually ensures that the result in federal court will be dismissal on the basis of the Supremacy Clause defense. This strikes me as wrong or at least overstated. The step-2 threshold for removal is a "colorable" or plausible defense, not necessarily a meritorious one. Even the Meadows motion acknowledges as much when (at page 7) it characterizes the FORS step-2 requirement as a "low threshold" that is satisfied, thus obviating the need for the court to decide the merits of the defense at the removal stage of the proceedings.
Why, then, have some generally thoughtful commentators suggested that meeting the removal threshold virtually ensures dismissal on the basis of the substantive defense? I believe part of the answer derives from sloppy language by the Supreme Court in Neagle, where it said that "if, in doing th[e] act" with which he was charged, the federal officer "did no more than what was necessary and proper for him to do, he cannot be guilty of a crime . . . ." That language calls to mind the Necessary and Proper Clause of the Constitution's Article I, Section 8, which, since McCulloch v. Maryland, has been understood to be very deferential to Congress. Hence, one might read Neagle as implicitly adopting a Supremacy Clause defense that is likewise deferential to federal authority.
I don't read Neagle that way. In Neagle, the Court was not considering the constitutionality of a federal statute and thus had no occasion to invoke the necessary-and-proper test as it relates to the Necessary and Proper Clause. And because protecting a Supreme Court Justice from an assassination attempt is obviously a federal interest of the highest order, anything the Neagle Court might have said about the minimal interest that would make out the defense was dicta.
Finally, I'll add that I'm not making a prediction. Based on what I know, I would say the courts should reject both the removal motion and the immunity defense on the merits. However, by manipulating the level of generality at which they describe the actions of Meadows, motivated federal judges can fit those actions into the language of prior removal and immunity cases. And whatever else one might say about the federal judiciary, it certainly has many motivated members.