“In Fulton County, Fear Not Removal”

Anna Bower, Alan Rozenshtein, and Ben Wittes for Lawfare:

The question of whether the Fulton County case should be removed to federal court—in whole or in part, temporarily pending resolution of certain immunity questions or all the way through trial—is actually a gnarly one with a lot of ins and outs and twists and turns. It’s a hard question, on which case law provides inadequate guidance and about which the answer is not obvious. (Writing in LawfareLee Kovarsky argues that Meadows’s removal motion is “weak” but, to his credit, recognizes that Meadows has a “nontrivial chance of succeeding.”) Federal removal is also not the hill on which the rule of law is going to make its last stand. 

Meadows—and Donald Trump, for that matter—can get a fair trial in Fulton County court. They can also get a fair trial in federal court. The fate of justice and accountability for Jan. 6 does not turn on the success of the removal litigation.

In our view, removal—at least for purposes of litigating the forthcoming issue of federal Supremacy Clause immunity—is probably the best approach for U.S. District Judge Steve Jones, who last week held a day-long evidentiary hearing at which Meadows testified. This is a provocative proposition, in part because there is so much anxiety about the perceived disadvantages to the prosecution if the case is removed. But these perceived disadvantages are largely a function of myths that require a bit of busting before one can examine the question of removal dispassionately. 

One misconception is that removal to federal court would render the charges eligible for presidential pardons should Trump or a sympathetic Republican prevail in the next election. But this is just wrong. Removal does not change the nature or substance of the state charges in the indictment. The charges would remain Georgia state charges under Georgia law. And presidential pardons can be granted only for “offenses against the United States,” meaning federal crimes. So even if the case were removed to federal court, neither Trump nor any other president could issue pardons related to the Fulton County case.  …

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