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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: We did nothing wrong at all, and we have every right,

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Speaker 1: every single right, to challenge an election.

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Speaker 2: That we think is dishonest.

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Speaker 1: So we think it's very dishonest. Donald Trump turned himself

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Speaker 1: in at the Fulton County Jail in Atlanta on Thursday

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Speaker 1: night to be booked on criminal racketeering charges. It's the

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Speaker 1: fourth time he's been booked in a criminal case, but

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Speaker 1: the first time his monk shot was taken. Trump is

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Speaker 1: at the center of the sprawling case over the efforts

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Speaker 1: to reverse Georgia's twenty twenty election results. All eighteen of

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Speaker 1: his co defendants have turned themselves in, including his former

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Speaker 1: chief of staff Mark Meadows, earlier in the day. The

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Speaker 1: next proceeding in the case is scheduled for Monday before

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Speaker 1: Atlanta Federal Judge Steve Jones, where Meadows is asking the

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Speaker 1: judge to move the case from state court to federal court.

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Speaker 1: Joining me is former federal prosecutor Robert Mentz, a partner

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Speaker 1: maccarter and English Bob. What are meadows arguments for moving

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Speaker 1: the trial to federal court?

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Speaker 2: So Meta's attorneys have cited a federal law known as

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Speaker 2: the Removal Statute, which generally allows any officer of the

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Speaker 2: United States who is facing criminal prosecution in state court

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Speaker 2: to move those proceedings to federal court if the case

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Speaker 2: relates to actions that were part of the individual's duties

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Speaker 2: as the federal officer. What Meadow's lawyers are arguing is

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Speaker 2: that all of the conduct that the legs in the

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Speaker 2: indictment really revolve around his role as chief of staff

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Speaker 2: to former President Trump, and they go through some of

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Speaker 2: the things, for example, arranging oval office meetings, contacting state

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Speaker 2: officials on the president's behalf, visiting a state government building,

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Speaker 2: setting up a phone call for the president. These are

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Speaker 2: the types of things they are arguing that one would

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Speaker 2: expect a chief of staff of the president to do,

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Speaker 2: and therefore they're arguing that it is within the conduct

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Speaker 2: the official conduct of mister Meadows, and therefore is something

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Speaker 2: that should be tried in federal court, not in state court.

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Speaker 1: And what is the response of the prosecutor Fannie willis.

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Speaker 2: The prosecutors arguing that the conduct at the legacy indictment

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Speaker 2: is outside the scope of mister Meadow's official duties. And

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Speaker 2: one of the things that she points to is the

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Speaker 2: fact that even mister Meadows admits that the conduct that

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Speaker 2: he was engaged in is political activity. That is something,

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Speaker 2: she argues, is a violation of something called the Hatch Act,

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Speaker 2: which prohibit political activity by executive branch employees acting under

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Speaker 2: their official capacity. So she says, even if somehow this

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Speaker 2: is within the scope of his duties, it's outside the

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Speaker 2: scope of his official duties because it's a violation of

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Speaker 2: this federal law called the Hatch Act. He also says

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Speaker 2: that he has no colorable federal defense because in order

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Speaker 2: to remove the case from state court to federal courts,

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Speaker 2: not only have to show that is within your official capacity,

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Speaker 2: but you also have to show that there is a

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Speaker 2: colorable federal defense. In other words, you can't raise a

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Speaker 2: state law defense in federal court and still get the

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Speaker 2: case removed. So here mister Meadows and his team is

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Speaker 2: arguing that the defense is under the supremacy clause, he

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Speaker 2: would be immune from prosecution because it's really a state

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Speaker 2: prosecutor trying to prosecute him for what is unquestionably conduct

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Speaker 2: within his official capacity. He's sort of tying this all

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Speaker 2: back into the hackhack argument and saying because the activity

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Speaker 2: is political it is a violation of federal law and

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Speaker 2: therefore not protected by the supremacy clause, and there is

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Speaker 2: no immunity defense available to him. So he argues that

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Speaker 2: it fails on both counts, and therefore the case needs

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Speaker 2: to stay in state court.

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Speaker 1: So who do you think has the better side of

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Speaker 1: the argument, Meadows or Willis.

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Speaker 2: Well. There have been cases where federal officials have been

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Speaker 2: involved in lawsuits and removed those the federal court, but

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Speaker 2: those have mostly been civil cases and not criminal cases.

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Speaker 2: I think here the defense has an uphill battle because

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Speaker 2: she's going to be able to show that, based on

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Speaker 2: these allegations, the violations do involve conduct that was outside

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Speaker 2: the scope of mister Meadow's official capacity and therefore doesn't

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Speaker 2: qualify for the type of case that would be removed

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Speaker 2: to federal court.

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Speaker 1: One reason might be because there are no cameras in

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Speaker 1: federal court, but there are a lot of other reasons

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Speaker 1: why defendants might want their case tried in federal court

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Speaker 1: as opposed to state.

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Speaker 2: Well, that's exactly right.

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Speaker 1: Now.

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Speaker 2: We should be clear that even if a case is

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Speaker 2: removed to federal court, it is not tried under federal law.

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Speaker 2: So you would have a federal judge applying state law

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Speaker 2: in a federal court room, and the sentence that would

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Speaker 2: be handed down would be handed down under state law.

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Speaker 2: And most importantly in this case, any sentence would not

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Speaker 2: be pardonable under federal law. So all of that would

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Speaker 2: rem even if the case were removed to federal court.

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Speaker 2: So why remove it at all? Well, there are some

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Speaker 2: benefits here that the defense might think is available to

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Speaker 2: them if they move to federal court, which is why

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Speaker 2: they're trying to file this motion. For one, the jury

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Speaker 2: pool in the federal case is a much bigger one

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Speaker 2: than there would be in the state case, and one

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Speaker 2: which I think the defense believes would be more favorable

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Speaker 2: to the defense here because it draws from a broader pool,

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Speaker 2: the entire northern districtive of Georgia, not just Fulton County,

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Speaker 2: and it is a jury pool then that, going by

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Speaker 2: the last election, was slightly more favorable to President Trump

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Speaker 2: than the Fulton County district, which went heavily for President Biden.

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Speaker 2: Another reason is that they may think that pulling a

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Speaker 2: state prosecutor out of their home court, so to speak,

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Speaker 2: moving them out of state court and putting him in

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Speaker 2: the unfamiliar turf of a federal courtroom might knock them

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Speaker 2: off their game a bit and make them a little uncomfortable.

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Speaker 2: There are also some procedural changes that would happen if

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Speaker 2: the case moved to federal court. For example, during the

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Speaker 2: vaid year, which is the part of the case where

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Speaker 2: prosecutors or judges interview prospective jurors, that's handled differently in

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Speaker 2: federal court. In federal court, the judge asks the questions

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Speaker 2: of the prospective jurors. In state courts, the attorneys that

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Speaker 2: ask those questions. So there are a number of differences

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Speaker 2: here that could slightly favor the defense in moving this

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Speaker 2: case to federal court. I think the largest one is

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Speaker 2: that they think they might get a more favorable jury pool,

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Speaker 2: and that's why they're trying to make this motion successful.

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Speaker 1: Yeah. I think we're up to four other defendants who

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Speaker 1: are also looking to move their cases from state to

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Speaker 1: federal court, and if Meadows succeeds, Trump might make a

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Speaker 1: similar move.

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Speaker 2: So the removal statute that mister Meadows is relying upon

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Speaker 2: in order to try to get this case removed from

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Speaker 2: state unmoved to federal court is actually a very old

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Speaker 2: statute which dates back over two hundred years. Historically, federal

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Speaker 2: officials have occasionally been subject to harassment, interference, or even

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Speaker 2: arrest by state officials during periods of tension between federal

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Speaker 2: and state governments, going back to the Civil War, for example.

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Speaker 2: So we have seen defendants rely on this two hundred

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Speaker 2: year old statute to try to prevent federal officials from

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Speaker 2: being stymied and carrying out their duties. It was a

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Speaker 2: mechanism that was originally created to combat state court lawsuits

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Speaker 2: that were filed against customs officers who are enforcing a

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Speaker 2: trade embargo against England during the War of eighteen twelve.

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Speaker 2: It really is trying to address a case where federal

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Speaker 2: officials are merely doing their job and for some reason,

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Speaker 2: state prosecutors and state government is trying to interfere with

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Speaker 2: them conducting their official duties. It doesn't prevent the prosecution

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Speaker 2: from moving forward, but it does move it to federal court,

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Speaker 2: where presumably they will get a fair hearing before a

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Speaker 2: federal judge rather than a state judge. That's a historical

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Speaker 2: basis for that. It doesn't really apply much today in

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Speaker 2: terms of what it was originally intended for, but it's

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Speaker 2: still available to defendants and if they do meet the criteria,

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Speaker 2: they can be cases can be moved to federal court.

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Speaker 1: Now, one of the defendants, Kenneth Chesbro, asked for a

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Speaker 1: speedy trial. The DA Fanny Willis, said okay, and the

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Speaker 1: judge set in October twenty third trial date just for

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Speaker 1: Chesbrow at this point, although Willis wants them all tried

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Speaker 1: on that date. By the way, Chesbro is a lawyer

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Speaker 1: accused of being sort of the mastermind behind the fake

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Speaker 1: elector scheme. What do you think about this defense strategy?

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Speaker 1: The trial date is just two months away.

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Speaker 2: Generally speaking, the defense does have a right to a

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Speaker 2: speedy trial. That's basically staying to prosecutors. Once you decide

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Speaker 2: to indict somebody, you can't drag this case out. You're

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Speaker 2: the ones that decided to bring the charges. You're in

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Speaker 2: control of the timing of when that indictment would be brought.

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Speaker 2: So when you, whoever the prosecutor is, decide to bring

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Speaker 2: that case, you better be ready to take it to trial,

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Speaker 2: and the defense can hold your feet to the fire

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Speaker 2: and ask for a speedy trial. As a practical matter,

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Speaker 2: Usually the defense wants to drag the case out and

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Speaker 2: delayed as long as possible. What we're seeing here is

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Speaker 2: a split in the tactics used by these defendants where

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Speaker 2: you have a defendants asking for the speedy trial, perhaps

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Speaker 2: thinking that the prosecution is not really ready to try

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Speaker 2: this case and they could tax them flat footed if

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Speaker 2: they demand this case go to trial as soon as possible.

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Speaker 2: But you have other defendants who want to try to

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Speaker 2: drag it out, and ultimately you'll be up to the

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Speaker 2: judge to try to make that decision. Another possibility that

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Speaker 2: we might see raised by some of these defendants is

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Speaker 2: an argument for severance, which is basically, let's break this

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Speaker 2: case up into two trials, perhaps even more, because the

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Speaker 2: defense ultimately has to have their rights protected, and you

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Speaker 2: have some defendants who want the speedy trial and others

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Speaker 2: who want the case delayed in order to better prepare

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Speaker 2: their defense. They might think by having this case tried

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Speaker 2: multiple times, it will give an advantage to the defense.

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Speaker 1: Trump's lawyer has filed a request to sever Cheesbro from

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Speaker 1: the case because of his speedy trial request. I've been

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Speaker 1: thinking about what would happen if the cases were severed,

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Speaker 1: So you'd have to have a lot of the same

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Speaker 1: witnesses testifying twice the defense might be able to catch

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Speaker 1: them in inconsistencies. And also does it give the defense

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Speaker 1: a preview of the prosecution's witnesses to a large extent.

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Speaker 2: Oh, sure, it'd be a huge advantage to the defense

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Speaker 2: were this case to be severed. I don't think a

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Speaker 2: judge is going to be inclined to do it, but

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Speaker 2: sometimes that does happen. There's something called prejudicial sillover. If

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Speaker 2: the defendants can argue that in trying the case together,

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Speaker 2: you know the jury will simply lump them all together

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Speaker 2: and not actually weigh the evidence against each defendant. And

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Speaker 2: there could be other reasons why they believe that the

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Speaker 2: trials should be done separately. And if it does happen,

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Speaker 2: and it doesn't happen a lot, but it does happen

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Speaker 2: in certain cases, it does give the defense in the

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Speaker 2: later cases a huge advantage because the defense then has

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Speaker 2: a complete preview of the prostitution's case. And even more importantly,

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Speaker 2: you have key witnesses who have already testified under oaths,

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Speaker 2: and now the defense knows exactly what they're going to

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Speaker 2: say and can use their prior testimony at the earlier

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Speaker 2: trial to try to trip them up. In a later

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Speaker 2: trial if there are any inconsistencies in their testimony in

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Speaker 2: the later trial as compared to the first trial.

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Speaker 1: We expect that some defendants are going to plead, so

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Speaker 1: it'll be less than nineteen defendants. But how could you

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Speaker 1: even try let's say, twelve defendants or thirteen defendant How

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Speaker 1: could you try that many in one trial.

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Speaker 2: Well, when I was a federal prosecutor, I did organize

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Speaker 2: crime cases, and we did have cases where there were

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Speaker 2: a large number of defendants. But as you say, many

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Speaker 2: times there are defendants who plead guilty before the trial

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Speaker 2: and you don't wind up with nineteen defendants going to trial.

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Speaker 2: That is a bit of an unwieldy number. Just picture

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Speaker 2: a courtroom with nineteen defendants and all the lawyers that

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Speaker 2: are representing those defendants. That is a bit of a

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Speaker 2: circus and is something that would be difficult for a

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Speaker 2: judge to control. It also makes the case very unwieldy

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Speaker 2: because you've got nineteen defense lawyers cross examining witnesses, and

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Speaker 2: in some cases you can have inconsistent defenses. And that's

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Speaker 2: why the defense lawyers may try to sever these cases

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Speaker 2: and say that it will be unfair to their clients

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Speaker 2: if they are tried. Along with some of the other defendants, We've.

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Speaker 1: Seen Donald Trump shake up his legal teams over and

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Speaker 1: over again. Here he switched lawyers just before his booking

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Speaker 1: in Atlanta. He added Steve Sadau, a well known veteran

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Speaker 1: Georgia criminal defense attorney with high profile clients. But suppose

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Speaker 1: he tries to switch lawyers closer to trial.

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Speaker 2: Well, a defendant has the right to choose their lawyer

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Speaker 2: to represent them in a trial, and the judge will

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Speaker 2: allow a defendant to change lawyers even midstream in the

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Speaker 2: middle of a case. What they will not allow the

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Speaker 2: defense to do is use as an excuse to unduly

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Speaker 2: delay the trial. So sometimes you see a change in

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Speaker 2: lawyer a week or two before a trial, with the

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Speaker 2: new lawyer coming in saying, Judge, I'm new to the case.

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Speaker 2: I'm going to need three months to get ready to

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Speaker 2: defend this case. Generally judges are going to be very

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Speaker 2: frustrated with that. They may give some additional time, not

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Speaker 2: all additional time, or sometimes they stay to the defense

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Speaker 2: lawyer who's in the case and the one who's trying

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Speaker 2: to come in. I'm not going to let the existing

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Speaker 2: lawyer out of the case unless the new lawyer is

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Speaker 2: prepared to try the case according to the existing schedule.

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Speaker 2: But it does become tricky because if the relationship between

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Speaker 2: a lawyer and a client completely breaks down, it is

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Speaker 2: difficult for a judge to insist that a defendant go

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Speaker 2: to trial with that lawyer. That's the case where a

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Speaker 2: judge runs the risk of having an entire trial which

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Speaker 2: ultimately gets overturned on appeal, where a defendant can argue

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Speaker 2: that they did not have an agreement with their lawyer

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Speaker 2: about the strategy, and there was basically a situation where

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Speaker 2: the relationship had broken down to sich a point that

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Speaker 2: the lawyer does not believe they can effectively represent the defendant.

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Speaker 2: So as much as a judge may try to keep

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Speaker 2: a case on track, twitching lawyers is something that a

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Speaker 2: judge will ultimately likely allow a defendant to do, but

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Speaker 2: they will try to do in the stix a way

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Speaker 2: that doesn't allow the defense to unreasonably delay the start

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Speaker 2: of the trial.

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Speaker 1: Thanks so much, Bob. That's Robert Mints a partner maccarter

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Speaker 1: in English, and that's it for this edition of The

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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

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Speaker 1: legal news by listening to our Bloomberg Law podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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Speaker 1: dot bloomberg dot com slash podcast Slash Law. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg