Some of Donald Trump’s co-defendants in the election interference case in Georgia began turning themselves in on Tuesday, while others tried to get the sprawling criminal case moved out of state court and into federal court.
Jeffrey Clark, a former Justice Department official, and David Shafer, the former head of the Georgia Republican Party, each filed motions Tuesday asking to have the case moved to federal court, just as Mark Meadows, the former White House chief of staff, did last week. Those motions lay the groundwork for what will be the first major legal fight in the case, which was filed in Superior Court in Atlanta last week.
Most of the defendants, including Trump, plan to turn themselves in this week, as ordered by Fani Willis, the district attorney of Fulton County, Georgia, who is leading the investigation. But Clark filed a request Tuesday for an emergency stay, in a bid to avoid turning himself in at the notorious Atlanta jail where the defendants are being processed. Meadows made a similar request later in the day.
Another prominent Trump ally, John Eastman, turned himself in Tuesday and was booked at the jail. Eastman, a chief architect of Trump’s effort to reverse his 2020 election loss, said in a statement that the indictment “represents a crossing of the Rubicon for our country, implicating the fundamental First Amendment right to petition the government for redress of grievances.”
“As troubling,” the statement continued, “it targets attorneys for their zealous advocacy on behalf of their clients, something attorneys are ethically bound to provide.”
State criminal prosecutions can be removed to federal court under a federal statute that allows for such a change of venue if the case involves federal officials and pertains to actions taken “under color” of their office. The term refers to things done in an official capacity or as part of official duties.
Last month, a federal judge rejected Trump’s efforts to have another state criminal case against him removed to federal court. That case, in New York, centers on Trump’s role in hush-money payments to an actress in pornographic films. In his order, Judge Alvin Hellerstein wrote: “Hush money paid to an adult film star is not related to a president’s official acts.”
If the motions for removal of the Georgia case are successful, the defendants would probably then argue in federal court that they should not be charged for state crimes, and would base that argument on the Supremacy Clause of the U.S. Constitution, which says that federal laws generally take precedence over state laws.
Three of the 19 defendants charged by Willis were federal officials at the time of the election: Trump, Clark and Meadows. Meadows filed a motion Friday asking a judge to dismiss the charges against him, based on the Supremacy Clause; on Tuesday, he asked a federal court to either “immediately” permit removal or allow him to avoid arrest in Fulton County until a hearing on his removal request early next week.
Meadows included in his filing an email to his lawyer from Willis, in which she rejected the idea of letting Meadows delay turning himself in. “Your client is no different than any other criminal defendant in this jurisdiction,” she wrote, describing the nearly two weeks she had given Meadows and his co-defendants to surrender as “a tremendous courtesy.”
Clark’s lawyer, Harry W. MacDougald, argued in a legal filing that his client “was a high-ranking U.S. Justice Department official at all relevant times applicable to the Fulton County Action,” adding that “the allegations therein relate directly to his work at the Justice Department as well as with the former President of the United States.”
Judge Steve C. Jones of U.S. District Court in Atlanta ordered Willis’ office on Tuesday to reply to the motion for an emergency stay by Wednesday at 3 p.m.
The racketeering indictment obtained by Willis laid out eight ways the defendants are accused of trying, as part of a “criminal enterprise,” to reverse the results of the 2020 presidential election: by lying to the Georgia legislature, lying to state officials, enlisting or acting as fake pro-Trump electors to circumvent the popular vote, harassing election workers, soliciting Justice Department officials, soliciting Vice President Mike Pence, breaching voting machines and engaging in a cover-up.
Shafer was never a federal official, but he was one of 16 Georgia Republicans who sought to cast false Electoral College votes in favor of Trump on Dec. 14, 2020, after Joe Biden’s victory in the state had been certified by state officials.
Shafer’s lawyers made a novel legal argument that their client had the right to remove the case to federal court because, as a “presidential elector,” he was “acting under the authority of the Constitution and the Electoral Count Act,” and was doing so “at the direction of the President and other federal officers.”
Removal to federal court would broaden the jury pool for a potential trial. Instead of drawing jurors just from Fulton County, where 26% of voters chose Trump in the 2020 election, they would be drawn from a 10-county region that includes Fulton along with more suburban and exurban counties where Trump won just under 34% of the vote.
A number of legal experts say that moving the Georgia case to federal court would not allow Trump to pardon himself, if reelected, after a conviction in the case. The Constitution grants presidents the power to pardon “offenses against the United States,” but the crimes charged in the Georgia case, wherever they are tried, are offenses against the state of Georgia, said Anthony Michael Kreis, a constitutional law expert at Georgia State University.
Meadows, in his filing last week, said that actions he took — including his involvement in a January 2021 phone call between Trump and the Georgia secretary of state, Brad Raffensperger, that was a focus of the Georgia investigation — fell within the scope of his duties as chief of staff to the president.
A hearing on Meadows’ request is scheduled for Monday at 10 a.m. before Jones, who was nominated to the bench by President Barack Obama.
Shafer’s bond was set at $75,000 on Tuesday. The bonds for Eastman and for Jenna Ellis, another of Trump’s former lawyers, were set at $100,000, and for Michael Roman, a former Trump campaign aide, at $50,000.
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