Why Fani Willis' Case Against Trump Should be Moved to Federal Court

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Category: Prosecutors - County
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Mark Meadows' Removal Motion:

The case filed by Fulton County DA Fani Willis should be removed to federal court because that is the appropriate forum when charges are brought against current or former federal officials for acts committed on the clock. There are a couple reasons for this. First, the removal statute which governs cases against federal officials; Second, judicial economy and the spirit of double jeopardy.

Removal Statute

Mark Meadows has already filed a motion to remove the case against him to federal court (see PDF uploaded above). Meadows relies on 28 U.S.C. 1442 (https://www.law.cornell.edu/uscode/text/28/1442) and 1455 (https://www.law.cornell.edu/uscode/text/28/1455). Those statutes permit the removal of any civil or criminal proceeding to federal court when the defendant is a current or former federal official and the allegations stem from the performance of official duties. Some might look at that last sentence and think, "breaking the law is not an official duty." They might be technically correct is a general sense but not a legal one. When a federal official breaks the law while on the clock their conduct is almost always considered to have been conducted under color of federal law.

This author has personal experience in this area of the law. Several years ago I sued the United States for battery by federal officers at the United States Penitentiary in Victorville, California. I briefly considered filing my case in state court in San Bernardino County but instead decided to file cases under Bivens v. Six Unknown Named Agents (https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents) and the Federal Tort Claims Act (https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act). Had I filed in San Bernardino County the case would've most likely been removed to federal court for the same reasons argued by Meadows. The Bivens lawsuit was filed in the U.S. District Court for the Central District of California against the individual officers. The FTCA lawsuit was filed in the District or Oregon where I live because you can sue the federal government anywhere in the country. The FTCA allows you to sue the federal government for batteries committed by their employees in the course of their duties even though battery is illegal. If Willis could successfully argue that Trump's conduct was illegal thus not part of his duties then the United States could've argued that beating me up was not part of my abusers' official duties, my FTCA claim would have been dismissed, and I would've been left with just the Bivens to pursue against the named officers in their individual capacities in California. I eventually settled the FTCA claim for $10,000 after discovery produced inconclusive video evidence. If my case were a criminal prosecution then the appropriate forum would have been federal court in California.

Donald Trump and his associates were federal officials, so the appropriate mechanism for prosecuting them should be federal charges under 18 U.S.C. 241 (https://www.law.cornell.edu/uscode/text/18/241) for conspiracy to deprive people of their voting rights. There are of course other federal laws Trump may have violated. As the video below shows, the federal government need not file charges in this case because removing a case to federal court still allows Willis to pursue her case on her own with or without help from the feds. Willis would still be arguing the case, charging violations of Georgia law, and pursuing the same sentences, but she would have to do so in a federal courthouse in front of a federal judge in accordance with the federal rules which require a unanimous jury.

Dual Sovereignty and Double Jeopardy

Some might wonder how the federal government could prosecute Trump for the allegations out of Georgia without violating the double jeopardy clause of the Fifth Amendment. The answer to that is dual sovereignty. The federal government and the state of Georgia are two separate distinct sovereignties with their own similar yet technically different laws. Under dual sovereignty no state conviction can attach jeopardy to charges in federal court even if the charges stem from the same alleged behavior. Technically, Donald Trump could be acquitted in Georgia and then prosecuted federally for the same conduct (see https://crsreports.congress.gov/product/pdf/LSB/LSB10763).

This author has been on the receiving end of this area of the law. Over a decade ago I was arrested on state charges and my bail was "enhanced" to $1,000,000 after which the U.S. Marshals put a hold on me based on a criminal complaint (not an indictment) filed by the FBI. I remained in jail for months before being indicted federally, the state charges were dismissed, and I was held without bail due to there being no bail in the federal system. My first reaction was, "how can they charge me for the same conduct twice without violating double jeopardy?" My lawyers explained dual sovereignty to me and how winning a state trial wouldn't have any bearing on the federal charges. Fortunately, federal prosecutors are usually too worried about the state messing up their case somehow, so state charges are almost always dismissed when federal charges are brought.

The opposite is also true sometimes. When I was in trouble I met someone who won a federal trial for allegedly beating up a gay couple because of their sexual orientation. His federal trials ended in hung juries because he claimed to be gay himself and argued that his motive was not their sexual orientation. He was subsequently convicted of assault in state court and sentenced to state prison.

I suspect the feds in Georgia of being ready to take over this case. They probably want to wait a little while and see how Trump reacts (https://www.youtube.com/watch?v=t1gqpSzS0A0) before finally intervening. Fani Willis is likely aware of this which is why she refused to comment when asked if she had been in contact with Special Counsel Jack Smith. The statute of limitations is five years so Smith has plenty of time, but will likely want to bring the case to trial before the election next year. Smith seems to have just enough time to give Team Trump enough rope to hang themselves before officially announcing his involvement.


Federal court is the appropriate forum for charges brought against current or former federal officials for acts committed on the clock. Dual sovereignty does not technically violate double jeopardy so the feds are likely lurking already.

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