The first big hearing in the case over Trump’s interference in the Georgia 2020 election could shape how the trial will unfold.
The first major hearing in the case over former President Donald Trump’s efforts to overturn the 2020 election in Georgia is happening Monday — and how it plays out could shape how Trump’s trial ultimately unfolds.
The hearing concerns whether one of the defendants, Trump’s former White House chief of staff, Mark Meadows, should be tried in federal court instead of state court. Meadows, one of 19 defendants in the case, has argued that the case needs to be heard in federal court because he’s protected by the US Constitution’s supremacy clause, which shields federal officials from state prosecution over acts committed while performing their duties. Federal, not state, courts have jurisdiction over constitutional issues.
He argues that he acted in his official capacity when he helped coordinate between Trump and state election officials on legal strategies and false theories of election fraud. Though Meadows has not laid out any other reasons for wanting to move his trial, it is possible his team believes a federal jury would be more sympathetic to his case than one based in Fulton County, which tends to favor Democrats in elections. A federal trial would likely have a jury pulled from a broader cross-section of the state.
Fulton County District Attorney Fani Willis, however, wants the case remanded to state court. The danger of moving the case to federal court is that Willis could be forced to prosecute each defendant separately, over a longer than ideal period of time, rather than in one big case. She’s already encountered a hiccup in that respect, given that Kenneth Chesebro, a former member of Trump’s legal team who advanced a plan to install fake electors in Georgia, has been allowed a speedy trial scheduled for the end of October, before any other defendants in the case will be tried.
Other defendants’ cases may be broken off; Georgia Republicans David Shafer and Shawn Still, who were part of Trump’s scheme to install fake electors in Georgia, have also requested that the cases against them be moved to federal court because they say they were acting at the direction of Trump and his surrogates, who were agents of the federal government. And that “plays right into Trump’s hands,” said Randy Zelin, a law professor at Cornell University.
“What’s going to happen is these cases are going to start to get severed, which is Trump’s dream scenario: delay, stall, let other people go first,” he said. “Trump is sitting back saying, ‘I want to watch two trials, three trials, four trials. I have all of this opportunity now to take the evidence and take the testimony and prepare my defense.’ That is a defense lawyer’s dream.”
Will Meadows succeed?
The trouble for Meadows is that he made a concession that may both doom his efforts to ensure that the case moves to federal court and give prosecutors a weapon to use against him, regardless of where his trial is held: Meadows’s lawyers said in their briefs that all the allegations against him in the indictment “concern unquestionably political activity.”
“The second he said that he shot himself, if not in the foot, maybe in the upper shoulder close to his heart,” Zelin said.
That’s because that line seems to be an admission that he was acting on behalf of the Trump campaign, not the White House. That would suggest that he wasn’t covered by the supremacy clause, because participating in campaign work is not part of a White House chief of staff’s duties. And that’s given prosecutors an opening to argue that there’s therefore no reason to move the case to federal court.
In filings last week, they wrote that Trump campaign duties are “by definition, outside the lawful scope of his authority as chief of staff.” Additionally, prosecutors claim Meadows violated the Hatch Act, which bars federal officials from engaging in partisan political activity while on duty. He may face additional liability for that in federal court, but when it comes to the state criminal charges brought against him, prosecutors appear likely to be able to proceed in state court.
“I would be a bit surprised if any federal judge agreed to take this case,” Zelin said.
The messy prosecution ahead
However, even if Meadows doesn’t succeed in ensuring he’s tried in federal court, some of his co-defendants could, potentially including Trump. And that could splinter the case in a way that disadvantages the prosecution.
The charges Willis has pursued in the case are under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. To get a conviction, she has to show that Trump was the ringleader of a criminal enterprise — involving attorneys, staffers, and local officials allegedly working with the former president — to overturn the 2020 election results in Georgia. That’s a lot easier to do when all of the defendants are being tried in the same court.
If the case gets broken up, it will likely mean that Trump is tried after at least some of the other defendants, Zelin said, especially any who, like Chesebro, ask for an expedited trial. He would then have the benefit of knowing the legal arguments that Georgia prosecutors will bring against him, could find ways to hold Georgia’s witnesses to account for discrepancies in their testimony across the various cases, and would be able to see how juries react to various defenses.
Beyond that, there’s another key benefit for Trump of having some of the cases — especially his — moved to federal court: the lack of cameras. While Willis has signaled that she wants to have cameras in Georgia court, federal court proceedings won’t be aired live.
“Trump does not want the cameras trained on him while he is sitting humbled in the defendant’s chair while the prosecutor is speaking to jurors, feeding them actual facts and the judge is sitting on the bench above him calling the shots,” said Cheryl Bader, a professor at Fordham School of Law. “He would rather have the cameras rolling outside the courtroom where he can control the ‘spin.’”
Besides those advantages for Trump, however, Willis still will be able to make the same legal arguments that she would have in Georgia court and the difference in the jury pools isn’t massive, said John C. Coffee, a professor at Columbia Law School. What’s more, a drawn-out prosecution was always likely in this case given its size and the fact that the federal charges against Trump for his involvement in the January 6, 2021 insurrection will likely take precedence. On Monday, the judge in that case set a trial date for March 2024.
“With 19 defendants, each of whom has a counsel wishing to cross-examine every witness, that RICO case may take up to a year to try from when it begins,” Coffee said. “We are beginning to get a drama with a clear climax centering on the March trial in Washington.”