Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: We did nothing wrong at all, and we have every right,
Speaker 1: every single right, to challenge an election.
Speaker 2: That we think is dishonest.
Speaker 1: So we think it's very dishonest. Donald Trump turned himself
Speaker 1: in at the Fulton County Jail in Atlanta on Thursday
Speaker 1: night to be booked on criminal racketeering charges. It's the
Speaker 1: fourth time he's been booked in a criminal case, but
Speaker 1: the first time his monk shot was taken. Trump is
Speaker 1: at the center of the sprawling case over the efforts
Speaker 1: to reverse Georgia's twenty twenty election results. All eighteen of
Speaker 1: his co defendants have turned themselves in, including his former
Speaker 1: chief of staff Mark Meadows, earlier in the day. The
Speaker 1: next proceeding in the case is scheduled for Monday before
Speaker 1: Atlanta Federal Judge Steve Jones, where Meadows is asking the
Speaker 1: judge to move the case from state court to federal court.
Speaker 1: Joining me is former federal prosecutor Robert Mentz, a partner
Speaker 1: maccarter and English Bob. What are meadows arguments for moving
Speaker 1: the trial to federal court?
Speaker 2: So Meta's attorneys have cited a federal law known as
Speaker 2: the Removal Statute, which generally allows any officer of the
Speaker 2: United States who is facing criminal prosecution in state court
Speaker 2: to move those proceedings to federal court if the case
Speaker 2: relates to actions that were part of the individual's duties
Speaker 2: as the federal officer. What Meadow's lawyers are arguing is
Speaker 2: that all of the conduct that the legs in the
Speaker 2: indictment really revolve around his role as chief of staff
Speaker 2: to former President Trump, and they go through some of
Speaker 2: the things, for example, arranging oval office meetings, contacting state
Speaker 2: officials on the president's behalf, visiting a state government building,
Speaker 2: setting up a phone call for the president. These are
Speaker 2: the types of things they are arguing that one would
Speaker 2: expect a chief of staff of the president to do,
Speaker 2: and therefore they're arguing that it is within the conduct
Speaker 2: the official conduct of mister Meadows, and therefore is something
Speaker 2: that should be tried in federal court, not in state court.
Speaker 1: And what is the response of the prosecutor Fannie willis.
Speaker 2: The prosecutors arguing that the conduct at the legacy indictment
Speaker 2: is outside the scope of mister Meadow's official duties. And
Speaker 2: one of the things that she points to is the
Speaker 2: fact that even mister Meadows admits that the conduct that
Speaker 2: he was engaged in is political activity. That is something,
Speaker 2: she argues, is a violation of something called the Hatch Act,
Speaker 2: which prohibit political activity by executive branch employees acting under
Speaker 2: their official capacity. So she says, even if somehow this
Speaker 2: is within the scope of his duties, it's outside the
Speaker 2: scope of his official duties because it's a violation of
Speaker 2: this federal law called the Hatch Act. He also says
Speaker 2: that he has no colorable federal defense because in order
Speaker 2: to remove the case from state court to federal courts,
Speaker 2: not only have to show that is within your official capacity,
Speaker 2: but you also have to show that there is a
Speaker 2: colorable federal defense. In other words, you can't raise a
Speaker 2: state law defense in federal court and still get the
Speaker 2: case removed. So here mister Meadows and his team is
Speaker 2: arguing that the defense is under the supremacy clause, he
Speaker 2: would be immune from prosecution because it's really a state
Speaker 2: prosecutor trying to prosecute him for what is unquestionably conduct
Speaker 2: within his official capacity. He's sort of tying this all
Speaker 2: back into the hackhack argument and saying because the activity
Speaker 2: is political it is a violation of federal law and
Speaker 2: therefore not protected by the supremacy clause, and there is
Speaker 2: no immunity defense available to him. So he argues that
Speaker 2: it fails on both counts, and therefore the case needs
Speaker 2: to stay in state court.
Speaker 1: So who do you think has the better side of
Speaker 1: the argument, Meadows or Willis.
Speaker 2: Well. There have been cases where federal officials have been
Speaker 2: involved in lawsuits and removed those the federal court, but
Speaker 2: those have mostly been civil cases and not criminal cases.
Speaker 2: I think here the defense has an uphill battle because
Speaker 2: she's going to be able to show that, based on
Speaker 2: these allegations, the violations do involve conduct that was outside
Speaker 2: the scope of mister Meadow's official capacity and therefore doesn't
Speaker 2: qualify for the type of case that would be removed
Speaker 2: to federal court.
Speaker 1: One reason might be because there are no cameras in
Speaker 1: federal court, but there are a lot of other reasons
Speaker 1: why defendants might want their case tried in federal court
Speaker 1: as opposed to state.
Speaker 2: Well, that's exactly right.
Speaker 1: Now.
Speaker 2: We should be clear that even if a case is
Speaker 2: removed to federal court, it is not tried under federal law.
Speaker 2: So you would have a federal judge applying state law
Speaker 2: in a federal court room, and the sentence that would
Speaker 2: be handed down would be handed down under state law.
Speaker 2: And most importantly in this case, any sentence would not
Speaker 2: be pardonable under federal law. So all of that would
Speaker 2: rem even if the case were removed to federal court.
Speaker 2: So why remove it at all? Well, there are some
Speaker 2: benefits here that the defense might think is available to
Speaker 2: them if they move to federal court, which is why
Speaker 2: they're trying to file this motion. For one, the jury
Speaker 2: pool in the federal case is a much bigger one
Speaker 2: than there would be in the state case, and one
Speaker 2: which I think the defense believes would be more favorable
Speaker 2: to the defense here because it draws from a broader pool,
Speaker 2: the entire northern districtive of Georgia, not just Fulton County,
Speaker 2: and it is a jury pool then that, going by
Speaker 2: the last election, was slightly more favorable to President Trump
Speaker 2: than the Fulton County district, which went heavily for President Biden.
Speaker 2: Another reason is that they may think that pulling a
Speaker 2: state prosecutor out of their home court, so to speak,
Speaker 2: moving them out of state court and putting him in
Speaker 2: the unfamiliar turf of a federal courtroom might knock them
Speaker 2: off their game a bit and make them a little uncomfortable.
Speaker 2: There are also some procedural changes that would happen if
Speaker 2: the case moved to federal court. For example, during the
Speaker 2: vaid year, which is the part of the case where
Speaker 2: prosecutors or judges interview prospective jurors, that's handled differently in
Speaker 2: federal court. In federal court, the judge asks the questions
Speaker 2: of the prospective jurors. In state courts, the attorneys that
Speaker 2: ask those questions. So there are a number of differences
Speaker 2: here that could slightly favor the defense in moving this
Speaker 2: case to federal court. I think the largest one is
Speaker 2: that they think they might get a more favorable jury pool,
Speaker 2: and that's why they're trying to make this motion successful.
Speaker 1: Yeah. I think we're up to four other defendants who
Speaker 1: are also looking to move their cases from state to
Speaker 1: federal court, and if Meadows succeeds, Trump might make a
Speaker 1: similar move.
Speaker 2: So the removal statute that mister Meadows is relying upon
Speaker 2: in order to try to get this case removed from
Speaker 2: state unmoved to federal court is actually a very old
Speaker 2: statute which dates back over two hundred years. Historically, federal
Speaker 2: officials have occasionally been subject to harassment, interference, or even
Speaker 2: arrest by state officials during periods of tension between federal
Speaker 2: and state governments, going back to the Civil War, for example.
Speaker 2: So we have seen defendants rely on this two hundred
Speaker 2: year old statute to try to prevent federal officials from
Speaker 2: being stymied and carrying out their duties. It was a
Speaker 2: mechanism that was originally created to combat state court lawsuits
Speaker 2: that were filed against customs officers who are enforcing a
Speaker 2: trade embargo against England during the War of eighteen twelve.
Speaker 2: It really is trying to address a case where federal
Speaker 2: officials are merely doing their job and for some reason,
Speaker 2: state prosecutors and state government is trying to interfere with
Speaker 2: them conducting their official duties. It doesn't prevent the prosecution
Speaker 2: from moving forward, but it does move it to federal court,
Speaker 2: where presumably they will get a fair hearing before a
Speaker 2: federal judge rather than a state judge. That's a historical
Speaker 2: basis for that. It doesn't really apply much today in
Speaker 2: terms of what it was originally intended for, but it's
Speaker 2: still available to defendants and if they do meet the criteria,
Speaker 2: they can be cases can be moved to federal court.
Speaker 1: Now, one of the defendants, Kenneth Chesbro, asked for a
Speaker 1: speedy trial. The DA Fanny Willis, said okay, and the
Speaker 1: judge set in October twenty third trial date just for
Speaker 1: Chesbrow at this point, although Willis wants them all tried
Speaker 1: on that date. By the way, Chesbro is a lawyer
Speaker 1: accused of being sort of the mastermind behind the fake
Speaker 1: elector scheme. What do you think about this defense strategy?
Speaker 1: The trial date is just two months away.
Speaker 2: Generally speaking, the defense does have a right to a
Speaker 2: speedy trial. That's basically staying to prosecutors. Once you decide
Speaker 2: to indict somebody, you can't drag this case out. You're
Speaker 2: the ones that decided to bring the charges. You're in
Speaker 2: control of the timing of when that indictment would be brought.
Speaker 2: So when you, whoever the prosecutor is, decide to bring
Speaker 2: that case, you better be ready to take it to trial,
Speaker 2: and the defense can hold your feet to the fire
Speaker 2: and ask for a speedy trial. As a practical matter,
Speaker 2: Usually the defense wants to drag the case out and
Speaker 2: delayed as long as possible. What we're seeing here is
Speaker 2: a split in the tactics used by these defendants where
Speaker 2: you have a defendants asking for the speedy trial, perhaps
Speaker 2: thinking that the prosecution is not really ready to try
Speaker 2: this case and they could tax them flat footed if
Speaker 2: they demand this case go to trial as soon as possible.
Speaker 2: But you have other defendants who want to try to
Speaker 2: drag it out, and ultimately you'll be up to the
Speaker 2: judge to try to make that decision. Another possibility that
Speaker 2: we might see raised by some of these defendants is
Speaker 2: an argument for severance, which is basically, let's break this
Speaker 2: case up into two trials, perhaps even more, because the
Speaker 2: defense ultimately has to have their rights protected, and you
Speaker 2: have some defendants who want the speedy trial and others
Speaker 2: who want the case delayed in order to better prepare
Speaker 2: their defense. They might think by having this case tried
Speaker 2: multiple times, it will give an advantage to the defense.
Speaker 1: Trump's lawyer has filed a request to sever Cheesbro from
Speaker 1: the case because of his speedy trial request. I've been
Speaker 1: thinking about what would happen if the cases were severed,
Speaker 1: So you'd have to have a lot of the same
Speaker 1: witnesses testifying twice the defense might be able to catch
Speaker 1: them in inconsistencies. And also does it give the defense
Speaker 1: a preview of the prosecution's witnesses to a large extent.
Speaker 2: Oh, sure, it'd be a huge advantage to the defense
Speaker 2: were this case to be severed. I don't think a
Speaker 2: judge is going to be inclined to do it, but
Speaker 2: sometimes that does happen. There's something called prejudicial sillover. If
Speaker 2: the defendants can argue that in trying the case together,
Speaker 2: you know the jury will simply lump them all together
Speaker 2: and not actually weigh the evidence against each defendant. And
Speaker 2: there could be other reasons why they believe that the
Speaker 2: trials should be done separately. And if it does happen,
Speaker 2: and it doesn't happen a lot, but it does happen
Speaker 2: in certain cases, it does give the defense in the
Speaker 2: later cases a huge advantage because the defense then has
Speaker 2: a complete preview of the prostitution's case. And even more importantly,
Speaker 2: you have key witnesses who have already testified under oaths,
Speaker 2: and now the defense knows exactly what they're going to
Speaker 2: say and can use their prior testimony at the earlier
Speaker 2: trial to try to trip them up. In a later
Speaker 2: trial if there are any inconsistencies in their testimony in
Speaker 2: the later trial as compared to the first trial.
Speaker 1: We expect that some defendants are going to plead, so
Speaker 1: it'll be less than nineteen defendants. But how could you
Speaker 1: even try let's say, twelve defendants or thirteen defendant How
Speaker 1: could you try that many in one trial.
Speaker 2: Well, when I was a federal prosecutor, I did organize
Speaker 2: crime cases, and we did have cases where there were
Speaker 2: a large number of defendants. But as you say, many
Speaker 2: times there are defendants who plead guilty before the trial
Speaker 2: and you don't wind up with nineteen defendants going to trial.
Speaker 2: That is a bit of an unwieldy number. Just picture
Speaker 2: a courtroom with nineteen defendants and all the lawyers that
Speaker 2: are representing those defendants. That is a bit of a
Speaker 2: circus and is something that would be difficult for a
Speaker 2: judge to control. It also makes the case very unwieldy
Speaker 2: because you've got nineteen defense lawyers cross examining witnesses, and
Speaker 2: in some cases you can have inconsistent defenses. And that's
Speaker 2: why the defense lawyers may try to sever these cases
Speaker 2: and say that it will be unfair to their clients
Speaker 2: if they are tried. Along with some of the other defendants, We've.
Speaker 1: Seen Donald Trump shake up his legal teams over and
Speaker 1: over again. Here he switched lawyers just before his booking
Speaker 1: in Atlanta. He added Steve Sadau, a well known veteran
Speaker 1: Georgia criminal defense attorney with high profile clients. But suppose
Speaker 1: he tries to switch lawyers closer to trial.
Speaker 2: Well, a defendant has the right to choose their lawyer
Speaker 2: to represent them in a trial, and the judge will
Speaker 2: allow a defendant to change lawyers even midstream in the
Speaker 2: middle of a case. What they will not allow the
Speaker 2: defense to do is use as an excuse to unduly
Speaker 2: delay the trial. So sometimes you see a change in
Speaker 2: lawyer a week or two before a trial, with the
Speaker 2: new lawyer coming in saying, Judge, I'm new to the case.
Speaker 2: I'm going to need three months to get ready to
Speaker 2: defend this case. Generally judges are going to be very
Speaker 2: frustrated with that. They may give some additional time, not
Speaker 2: all additional time, or sometimes they stay to the defense
Speaker 2: lawyer who's in the case and the one who's trying
Speaker 2: to come in. I'm not going to let the existing
Speaker 2: lawyer out of the case unless the new lawyer is
Speaker 2: prepared to try the case according to the existing schedule.
Speaker 2: But it does become tricky because if the relationship between
Speaker 2: a lawyer and a client completely breaks down, it is
Speaker 2: difficult for a judge to insist that a defendant go
Speaker 2: to trial with that lawyer. That's the case where a
Speaker 2: judge runs the risk of having an entire trial which
Speaker 2: ultimately gets overturned on appeal, where a defendant can argue
Speaker 2: that they did not have an agreement with their lawyer
Speaker 2: about the strategy, and there was basically a situation where
Speaker 2: the relationship had broken down to sich a point that
Speaker 2: the lawyer does not believe they can effectively represent the defendant.
Speaker 2: So as much as a judge may try to keep
Speaker 2: a case on track, twitching lawyers is something that a
Speaker 2: judge will ultimately likely allow a defendant to do, but
Speaker 2: they will try to do in the stix a way
Speaker 2: that doesn't allow the defense to unreasonably delay the start
Speaker 2: of the trial.
Speaker 1: Thanks so much, Bob. That's Robert Mints a partner maccarter
Speaker 1: in English, and that's it for this edition of The
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
Speaker 1: legal news by listening to our Bloomberg Law podcast. You
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Speaker 1: dot bloomberg dot com slash podcast Slash Law. I'm June
Speaker 1: Grosso and you're listening to Bloomberg