Friday Round Up! 8/25/23

We all knew it would end up here. But this is just the beginning.

Well, here we are. A former U.S. president’s mug shot — MUG SHOT, people — is now on t-shirts and being used as a campaign fundraising tool, making it clear that just when you think American democracy can’t get any lower, it most definitely can.

Anyhoo, while we engage in collective therapy to get this image unseared from our brains, let’s turn to the next legal developments in Georgia. First up is the hearing on Monday for defendant Mark Meadow’s request to remove his case to federal court. Several defendants have since made similar motions, including Jeffrey Clark (the former DOJ official who wanted to send a letter to Georgia and other states falsely stating that the Department was aware of election fraud in those states), and, incredibly, one of the indicted fake electors. While all of them will have to meet the same legal standard for removal (under 28 U.S.C. 1442(a)(1)), it looks like Mark Meadows may have the strongest weak claim of the bunch, making this hearing one worth watching (assuming it’s televised, which it looks like it will be).

Renato and I discussed the arguments that Meadows and D.A. Fani Willis will make at the hearing. But what is key here is that a) Meadow’s position as Trump’s Chief of Staff lends itself to the most plausible argument of the bunch that he was merely executing his federal duties (to advise and assist the president) when engaging in the conduct that is the subject of the Georgia indictment and b) the bar Meadows has to meet is pretty low — he merely has to make a “colorable” claim that he was acting in the scope of his federal duties and that the acts he engaged in were necessary and proper to execute those duties. Meadows has also moved to dismiss the indictment against him for similar reasons, arguing that under the Supremacy Clause of the Constitution, he is immune to state prosecution entirely. There may be some domino effects for other defendants if Meadows is successful, which makes this decision an important one in the trajectory of the case. (Note that one argument Meadows makes in his motion for dismissal is that he hasn’t been indicted by Jack Smith for January 6, thereby “proving” he didn’t violate federal law — one implication of Jack Smith’s apparent strategy to secure Meadow’s cooperation by merely treating him as a witness, which Renato and I also discuss.)

One point I made on Twitter “X” is that Meadows “defense” is completely at odds with the legal theory he claimed to legitimately be pursuing on Trump’s behalf. To wit: John Eastman and Kenneth Chesebro’s fake elector plot rested on the so-called “independent state legislature” theory, which asserts that state legislatures, and ONLY state legislatures, can determine the way that elections are administered in the state, and that no other entity or institution — including state courts — have the power to review or interfere in those decisions. (NB: The Supreme Court dismissed this theory outright last term.) Of course, if Meadows is now claiming that he had a completely legitimate federal authority to intervene in what was happening in a state election, including facilitating efforts to influence state legislators, then he’s pretty much conceding that he knew that the Eastman/Chesebro plot was illegal bunk, i.e., that he was committing a crime. The whole thing is a states’ rights “Who’s On First?” exercise, but then again, internal legal consistency has never been this gang’s strong suit.

Articles worth reading:

• If you want to get into the weeds on the removal issue, including how this would benefit defendants and the legal criteria Meadows must meet (including how the standards for removal and the immunity defense overlap), this Lawfare piece by University of Texas Law School Professor Lee Kovarsky is an excellent explainer

• This incredible Just Security piece which breaks down the various sub-conspiracies charged in the Georgia RICO case and which defendants are charged with what

Notable clips from this week:

A couple of clips from Trump’s surrender on Thursday and the release of his mug short after:

Upcoming events:

• Wine & Fries Club Happy Hour with Michael Cohen, Sunday, August 27, 8 p.m. EDT. Zoom link will be sent to Founding Members at 5 p.m. This is going to be GOOD

• Zoom Office Hours, Thursday, September 14, 8 a.m. EDT. Zoom link will be sent to paid subscribers at 5 a.m. (note that office hours are not recorded)

• Freedom Academy Book Club discussion with

  Steve Vladeck
  , author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, Tuesday, October 17, 3 p.m. EDT. Zoom link will be sent to paid subscribers at noon, and a recording of the discussion will be posting the following day. (Please check out the new Freedom Academy Book Club tab, where I will collate our book club discussions!)

Finally, class is back in session next week! We will pick up on our syllabus with Class 20, a peek into our favorite Russian mercenary war criminal’s pet project, The Internet Research Agency. I’ve removed the paywall from the first four classes on the syllabus if you want to take a peek (remember that once you enroll you can jump in at any time and catch up on old lessons at your leisure):

Class 1. Case Study: Operation Infektion

Class 2. What is Propaganda, and What’s the Problem With It?

Class 3. What the U.S. Can (and Can’t) Do to Stop Propaganda

Class 4. Why Can’t the U.S. Get Its Act Together When it Comes to Information Warfare?

Looking forward to starting the new “school year” with you!