Friday Round Up! 9/8/23

Meadows stays in state court, voters sue to keep Trump off the ballot in Colorado, and the Georgia special grand jury report is out.

I am tempted to make this whole post about the ridiculously poor wi-fi on Amtrak which prevented me from getting my round up out earlier today, but I will not. Instead, I’ll talk about the latest news, which is that Mark Meadows’ request for removal of his state prosecution to federal court was denied yesterday. He is appealing the ruling, but the order is worth reading. (If you want to understand the legal arguments that were in play leading up to the decision, scroll down to my piece for CAFE Insider this week, which lays out the volleying filings between Meadows’ lawyers and D.A. Fani Willis — the order and my explanation below will make much more sense as the entire thing is a little convoluted.)

Basically, Judge Steve Jones bit on Willis’ argument that what Meadows was being charged for was his association with the RICO conspiracy, not the overt acts listed in the indictment. The question therefore turned on, in the judge’s view, whether Meadows’ association with the conspiracy to intervene in Georgia’s electoral results were done under color of his office. Somewhat confusingly, the judge then looked at the overt acts as evidence of the context for Meadows’ association with the conspiracy, and found that all but one involved political activity, which are prohibited under the Hatch Act and therefore could not be said to be a part of his official duties. The judge then pivoted to make a federalism argument, namely that the administration of elections belonged to the states, and that to the extent that there is any federal role in state elections, that belongs to Congress, not to the President. In other words, even if Meadows was acting on the President’s behalf in terms of arranging meetings or calls, Trump himself had no Article II authority to be delegating tasks to Meadows in this sphere in the first place. As a result, the judge concluded, to allow removal under these circumstances would be contrary to the entire purpose of the removal statute, which is to prevent state interference in the execution of federal duties: What is at issue here was federal interference in state duties. (Because the judge found that Meadows was not acting under color of his office, he declined to reach the issue of whether Meadows had a colorable defense of immunity under the Supremacy Clause of the Constitution.)

I was personally very pleased to see the federalism argument, because as I write in the conclusion of my CAFE piece, the Fulton County prosecution involves a quintessential states’ rights issue — the right to administer elections and choose electors. I was especially happy to see Judge Jones cite to Moore v. Harper which, as you will recall, was the Supreme Court case that was trying to make the independent state legislature theory a thing; the independent state legislature theory, in turn, was what animated John Eastman’s entire fake elector scheme. (The Court decided it was not a thing.) It was nice to see Meadows hoisted by his own petard, as it were, since his efforts in Georgia was basically all about trying to give this wacky theory legs. And here’s the rub: the federalism argument will also almost certainly preclude Trump’s attempt to remove his case to federal court, because there is no way that Trump can argue that as POTUS, he had any constitutional role or duty involving elections in Georgia, or any other state. I mean, we’ll see if the11th Circuit upholds Judge Jones’ reasoning, but I think it will and my money is on the federalism argument.

Anyhoo, that’s not the only constitutional debate that was going on last week. The other involved whether Section 3 of the Fourteenth Amendment disqualifies Trump from holding office. (A lawsuit has already been filed in Colorado to keep him off the ballot there on these grounds.) Renato and I unpacked that question, and some of the tricky issues that arise in its implementation, on this week’s podcast:

My articles this week:

• An explainer for CAFE Insider on the legal back-and-forth in the Meadows’ removal issue

Other articles worth reading:

• This argument by Professory Larry Tribe and Judge Michael Luttig in The Atlantic, making the case for why Section 3 of the Fourteenth Amendment is self-executing (Renato and I reference this piece in our podcast)

• This very helpful backgrounder by the Congressional Research Service on Section 3 of the Fourteenth Amendment (which also refutes a claim former Attorney General Mike Mukasey made for The Wall Street Journal that Trump is not an “officer” for purposes of the Disqualification Clause)

Noteworthy clips from this week:

(I was in a hotel room with terrible lighting when news broke of the release of the Fulton County Special Grand Jury report, so had to phone it in…literally)

Upcoming events:

• NOTE NEW TIME: Zoom Office Hours, Thursday, September 14, 1 p.m. EDT. Zoom link will be sent to paid subscribers at 10 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!)

(I’m lining up some guest speakers for the course so stay tuned!)

That’s all for this week — given that there is so much going on, please let me know in the comments if there are any issues you are interested in hearing more about. It’s getting hard to triage so your feedback is welcome and appreciated!