(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Judge Jones Will Do the Right Thing Concerning Mark Meadows. He is Merely Doing Due Diligence [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-09-02 I’m seeing people starting to freak out over Judge Steve C. Jones not forcing a quick and decisive end to Mark Meadows’ attempt to get his trial removed to federal court. Time to calm down……. Each and every judge and prosecutor I have encountered, is saying Meadows doesn’t have a prayer. I believe Judge Jones is simply rising to the occasion of the Jan6 Georgia indictments, getting every duck in a row, and giving both sides every opportunity to state their arguments, on the record. For the purposes of avoiding any losses on appeal, and to give all onlookers transparency on the process. I’ve seen many articles on this subject, but this article at JustSecurity.org cinched it for me, personally. First, Jones’ question to the two sides: On Monday, federal district court Judge Steve C. Jones held an evidentiary hearing on Mark Meadows’ effort to remove Fulton County Georgia’s prosecution of him to federal court. On Tuesday, Judge Jones requested supplemental briefing on the following issue: “Count 1 of the Indictment (pertaining to Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-(c)) contains a number of overt acts attributed to Mr. Meadows. Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office, be sufficient for federal removal of a criminal prosecution under 28 U.S.C. § 1442(a)(1)?” The answer to the court’s question is no. A finding that one or more, but not all, of the overt acts alleged in the indictment was taken by Meadows under the color of his office would not be sufficient for federal removal of his Georgia state criminal prosecution under 28 U.S.C. § 1442(a)(1). Now, five points of legal reasoning: 1. Even if a subset of Meadows’ overt acts occurred under the color of his office, as the court’s question stipulates, the connection between the charged conduct and his office would still be “too tenuous to support removal.” Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 234 (4th Cir. 2022). 2. In order to warrant federal removal of a state criminal prosecution, a defendant must establish: (1) that the defendant was an “officer, or any person acting under that officer, of the United States”; (2) that the defendant is charged “for or relating to any act under color of such office”; and (3) that the defendant has raised or will raise a “colorable federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989). See also Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999). [...] Put more pointedly, one or more overt acts under color of law would not provide a defense, or satisfy immunity from prosecution, for the alleged RICO conspiracy (nor for Count 28 in the indictment). 3. The charge against Meadows for violating GA Code § 16-14-4(c) does not require that Meadows have taken any overt act at all. As a result, the indictment states an offense under that statutory provision, even if it does not allege any overt act by Meadows – and thus it still does so regardless of whether any overt act alleged was taken under the color of Meadows’ office. 4. There is no authority that directly supports the position that a single colorable overt act is sufficient [to remove the case to federal court]. 5. If the court finds that at least one (but not all) of the overt acts charged occurred under the color of Meadows’ federal office is sufficient for removal, the court should give the State of Georgia the opportunity to remove those alleged acts from the indictment or else to simply seek a superseding indictment without those alleged acts. (read the full article for MUCH more legal detail) DA Fani Willis is likely to make similar arguments in her filing to answer Judge Jones’ question. Judge Jones won’t (and shouldn’t) give a whit about what anyone but Ms. Willis and Mr. Terwilliger state in their answers to his question, but I have yet to see anyone siding with Meadows on this. And in Mark Meadows attempt to remove his case to federal court, he may have made things much worse for himself AND for defendant Trump. Meadows may now be facing a perjury charge…….. Experts have already warned that Meadows' surprise testimony may blow back on Trump, as his defense was "precisely that point which Fulton County DA Fani Willis is trying to prove: that Trump was at the center of this entire criminal conspiracy," wrote Daily Beast reporter Joe Pagliery. "He now cannot ever say, 'I wasn't doing this for the president, I was acting on my own,'" concluded Peter Odom, a former prosecutor at the Fulton County DA's office, told The Daily Beast. Even more examples of possible self-harm from Meadows’ testimony: 5 ways Mark Meadows’s testimony in Georgia federal court could backfire BY DENNIS AFTERGUT, OPINION CONTRIBUTOR - 08/29/23 2:30 PM ET Here are five ways that his testimony may well prove damaging to his cause. First, Judge Steve C. Jones asked him, “Is there a role under Article II of the Constitution for the president in a state election or any election?” When the judge deciding your case asks you a question that can determine the outcome, and you have the burden of convincing him you’re right, you better have a good answer. Meadows didn’t. “I don’t know enough to opine,” he responded. The best he could do was to wander into the valley of the vague. He offered, blearily, that it was his responsibility “to keep [Trump] well-informed and well-advised on a variety of issues.” [...] Second, on cross-examination, Meadows did himself more harm. Asked about whether solely advancing the interests of the campaign would be outside the scope of his responsibilities, Meadows answered, “I would not agree with that.” Ouch. Dead wrong. If you were “solely” campaigning, the Hatch Act prohibits federal employees like you from engaging in campaign activity. [...] Third, Meadows’s failure to offer persuasive testimony that his conduct was governmental will undermine his motion to get his case dismissed on grounds that he is immune from prosecution under federal law. To prevail, he also needs to have been acting in his official position. [...] No one can say for certain that Meadows’s motion will fail. Litigators know better than to predict with complete confidence what a judge will do, especially in a case where the legal burden is light for a party asserting a right to removal. But if you bet on his claim having success after his testimony Monday, be sure to get very good odds. For those asking why Meadows even decided to testify on his own behalf: I had heard a multitude of prognosticators predict a ZERO CHANCE of Meadows testifying on Monday. “The risks FAR outweigh the benefits,” they all say. Obviously, they were all wrong. So, why did Meadows do it? The best reason I’ve read is that Meadows would have much preferred to have multiple experts testify on his behalf at the hearing. The fact that he didn’t produce these experts, likely means that he COULDN’T FIND THEM. Apparently, nobody was willing to go into this hearing and lie for him. AND/OR, nobody agreed with his stated positions on these issues. Go………………...figure. [END] --- [1] Url: https://www.dailykos.com/stories/2023/9/2/2191126/-Judge-Jones-Will-Do-the-Right-Thing-Concerning-Mark-Meadows-He-is-Merely-Doing-Due-Diligence Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/