Mark Meadows, the White House Chief of Staff under former President Donald Trump, has asked a federal district court to “remove” his case from Georgia state court. The news may have confused many people—much has been made of the fact that the case brought by Fulton County District Attorney Fani Willis against Trump and 18 of his confederates, including Meadows, is a state prosecution. That means that neither Trump, were he to be reelected, nor any other president could issue a pardon. A pardon is only available under state law (and in the case of Georgia, that means not available).
How could it end up in federal court?
The answer lies in the case of the only Supreme Court Justice (as far as I can tell) ever arrested for murder.
First, there is an “officer removal” statute, 28 U.S.C. 1442, which provides that “any officer . . . of the United States” has the right to remove to federal court any state prosecution “for or relating to any act under color of such office.” This wording was added to the U.S. Code in 1866 to buttress federal enforcement of the newly passed Civil Rights Act. Southern sheriffs had already shown an inclination to jail—or do worse—to federal agents protecting Southern Blacks from mob violence and legal discrimination.
It’s doubtful that the law’s drafters foresaw protecting a White House official, but its terms apply: Meadows argues his actions alleged in the Georgia indictment were “part of his service as Chief of Staff.” He admits to “contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President.” The indictment claims that these acts (such as visiting and attempting to enter a Georgia vote-counting center or setting up and participating in the infamous “I just need to find 11,780 votes” phone call) were part of a criminal conspiracy to induce Georgia officials to overturn the legitimate vote. Meadows’s motion responds, “Nothing Mr. Meadows is alleged in the indictment to have done is criminal per se: arranging Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President.”
If Meadows’s petition succeeds, his first motion in federal court will be to dismiss the charges against him on the grounds of official immunity. Will he get his case moved?
To understand the case that will govern that decision, meet Supreme Court Justice Stephen J. Field, who served from 1863 to 1897. The first real Westerner on the Court—he moved to California when it was still a territory—he habitually wore a coat with not one but two gun pockets. He was notorious for his ability to carry a grudge: as one of his contemporaries wrote, “When Field hates, he hates for keeps.”
Before Abraham Lincoln tapped him for the Court, Field had been a local magistrate in Marysville, California, where, because the town could not afford a jail, he revived the whipping post as a punishment for minor offenses. In time, the voters elected him a justice of the California Supreme Court, whose chief justice was another colorful Western figure, David Terry. Terry resigned from California’s Supreme Court to duel with a friend of Field—and killed him. He enlisted in the Confederate Army but practiced law in California after the war.
One of Terry’s post-Civil War clients was a notorious beauty named Sarah Althea Hill. She so charmed former Nevada Senator William Sharon that he set her up in a luxury San Francisco hotel with $500 a month in walking-around money. Sharon eventually tired of Hill, however, and she was soon back out on the pavement.
In 1883, the ill-starred couple went to court. Hill claimed Sharon had married her and thus owed her $5 million—half of the fortune he’d gleaned from his Nevada silver mines. Sharon died as the suit was pending, and her gallant lawyer, Terry, married her. The case, now against Sharon’s estate, came before the federal circuit court, where one of the judges was (wouldn’t you know it?) his former colleague Stephen Field, briefly “riding circuit” in a duty that Supreme Court justices were required to perform until a statute ended the practice in 1911.
Picture the California courtroom when Field, a senior member of the circuit panel, read a judgment that Hill’s claim to the money was bogus. Supreme Court Justice Samuel F. Miller wrote that Hill leapt to her feet and screamed that Field had been bought. Field replied, “Be seated, madam.”
Field told the marshals to remove her, but when they tried, as Miller deliciously notes, “Terry, her husband, arose from his seat under great excitement, exclaiming that no man living should touch his wife, and struck the marshal a blow in his face so violent as to knock out a tooth. He then unbuttoned his coat, thrust his hand under his vest, apparently for the purpose of drawing a bowie-knife, when he was seized by persons present, and forced down on his back.” Terry agreed to leave the courtroom—but once outside, he went for the knife again. David Neagle led a group of fellow marshals to wrench it out of his hands and subdue him.
Field, ruling from the bench, sentenced the lovers to jail for contempt. Hill served one month; Terry did six but he was not chastened.
In response to threats from Terry, Attorney General William Harrison Miller directed federal marshals to protect Field when he returned to California for another circuit court tour. That was a wise decision: on August 14, 1889, Field and his bodyguard (who, as luck would have it, was David Neagle, the marshal who had subdued Terry in the courtroom the year before) were eating in a railway depot diner in Lathrop, California when Terry stormed in. I like to imagine that the piano stopped and other diners hastily exited through swinging doors. In any case, Terry launched “a murderous assault” on Field; Neagle drew his gun and shot the rogue attorney dead.
The local sheriff promptly threw both Neagle and Field in the hoosegow. After some brief embarrassment, he politely freed Field but kept Neagle. The luckless marshal remained confined until the federal circuit court (of which, let’s remember, Field himself was a member) ordered him freed, citing the removal statute. The sheriff appealed, and in 1890 the case went before the Supreme Court (of which, again, Field was also a member, though he scrupulously recused himself.) In a case called Neagle v. Cunningham, the Court held that Neagle was acting under “color” of his office because the Attorney General had the legal authority to protect a Supreme Court Justice. (Two justices dissented on this point. I’ve always wondered what the Court’s conference on the issue was like.)
American judges tend to be a bit less swashbuckling in the 21st Century, but Cunningham v. Neagle is now cited as establishing a two-part test for removal under § 1442: (1) Was the officer doing something authorized by federal law? and (2) Does the officer have a “federal defense” to the charge? Courts have repeatedly interpreted the second part to mean that the official acts must be “necessary and proper” or “reasonable and necessary” to the officer’s duties. In one case in the late 1980s, the Court held that two letter carriers had no federal defenses to criminal charges arising from accidents they’d had with their mail trucks because they had no official claim of immunity from traffic laws.
A federal court doesn’t have to decide those questions to resolve a motion to remove. The issue is whether the defendant has a “colorable” defense—which means to lawyers, “appearing to be true, valid, or right.” Michael L. Wells, a University of Georgia law professor who is an expert on civil rights and constitutional litigation, told me that defendants who seek removal “have to say they have a federal defense. I don’t think they have to have a good federal defense.” A district court can order a hearing before removing a case. Such a hearing would delay the Georgia prosecution—which may be what Meadows and others are primarily seeking.
Is “I was chief of staff” all Meadows must show? Or does he have to demonstrate that he thought that overturning an election was “reasonable and necessary” to carry out his duties?
Overthrowing the government is sometimes regarded by courts as a bad thing—perhaps more like crashing a really big mail truck than acting as a bodyguard for a justice. Federal judges, however, and the Supreme Court justices, in particular, are not enthusiastic about holding high federal officials liable for—well—any official acts, however monstrous.
That reluctance may protect not only Meadows but Trump, who is expected to
seek removal as well.