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