The big action this week was again in Georgia, where 3 of the 19 defendants in Fulton County DA Fani Willis’s RICO case sought to remove their cases to federal court. Removal of criminal cases is unusual — it’s much more common in civil court — so the law on when a federal officer must be tried in federal court is less well developed than you might hope. Roughly, the removing party must make three showings to get the federal court to take over: that he or she was a federal officer at the time of the offense, that the legal action relates to acts taken under color of that office, and that he or she has a colorable federal defense to the charges. It’s the third prong of that test that’s going to be the hardest to satisfy.
Ken and I talked about the varying strength and creativity of the removal arguments from Jeffrey Clark, Mark Meadows and David Shafer. Who is David Shafer? Well, he’s the chairman of the Georgia Republican Party and one of Trump’s purported electors from Georgia (a state he lost). Shafer says his position as a “contingent” elector made him a federal officer, and that even if it didn’t, he was acting at the direction of another federal officer (the president) and that makes him entitled to be tried in federal court. And we’re still waiting for the removal notice from Trump himself.
The whole situation is a bit of a mess — once you file your removal notice, your case is removed, but the federal court can kick the case back, and the state case can keep going even while the federal court is considering whether to take over your trial. So you can expect Fani Willis to keep moving straight ahead, and it’s likely the federal courts will ultimately decide all the defendants should simply have trials in state court, but — like many other things about this case — it could take years to resolve.
We hope our discussion on this issue makes the whole matter more intelligible for you.
In other news, we’ve learned more about the demise of Hunter Biden’s proposed plea agreement, including some signs that Republican political pressure was an important factor in the deal falling apart. And we talked about a remarkable and bold threat from Hunter’s lawyer — that they would seek to put Joe Biden on the stand if Hunter went on trial. Yikes.
And we talked about further signs of the financial strain legal troubles are putting on Rudy Giuliani — and about the former president’s limited willingness to help him out with that.
We hope you enjoy the episode,