Legal AF by MeidasTouch - Federal Appeals Court Raises BIG ISSUE in Trump RICO Case and DEMANDS Quick Response

Episode Date: September 13, 2023

With huge implications for Trump and the other 18 Georgia co-defendants, the 11th Circuit court of appeals has asked for a lightening round of briefing to decide whether Judge Jones was correct in denying Mark Meadows’ removal bid. In particular the Clerk has asked the parties to brief a question not raised by either party or the judge, whether you have to be a current federal officer in order for removal. Go to https://eightsleep.com/legalaf and save $150 on the Pod Cover Visit https://meidastouch.com for more! Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 American Psyop: https://pod.link/1652143101 Burn the Boats: https://pod.link/1485464343 Majority 54: https://pod.link/1309354521 Political Beatdown: https://pod.link/1669634407 Lights On with Jessica Denson: https://pod.link/1676844320 MAGA Uncovered: https://pod.link/1690214260 Learn more about your ad choices. Visit megaphone.fm/adchoices

The 11th Circuit is weighing in on Mark Meadows bid to try and get his case removed from Fannie Willis's jurisdiction, her home court in Georgia, to federal court, and they are on an expedited briefing schedule that we're going to talk about here in a duet with my legal AF co-anchor, Michael Popok. So let's talk about a little bit where we are and how we got to where we are today. So if you remember, Mark Meadows moved to, wanted to remove his case to federal court under 28 USC 1442 and 1455,

which basically sets forth the procedure on how you get your case move from State Court to Federal Court. And that requires three things. You have to be a Federal officer, you have to be working under the authority of your job description, and you have to have a plausible federal defense. And it's the defendant's burden. So it was Mark Meadows's burden to get his case and to show that he had those three elements and that he met those three elements.

There was a hearing before Judge Jones. The hearing was held on August 28th and Meadows testified. And he tried to say that everything was under his job description as the chief of staff. Remember, he was the chief of staff for Donald Trump at the end, maybe for eight months. And he said, you know, look, my job description, there's nothing that the chief of staff doesn't do. So everything was in my job description. The law here, and when a court will assert federal jurisdiction, there's a strong policy against federal interference because of federalism. But there is this carve out in the law

with those three elements. And what Judge Jones said was, okay, are you a federal officer? Do you meet number one Mark Meadows? Yes, the state conced that too by the way. Fanny Willis says, yeah, of course he was a federal officer. Number two, was it relating to any act under the color of such office? And what Judge Jones ruled was the scope of this is a mixed question of fact and law. It's an analysis that has to be done where you apply the facts to the law. So first you have to define what the acts were, ascertain the scope of the federal role, and analyze whether Mark Meadows showed that the acts in the indictment were for that federal job were under the role of chief of staff, and then number three, whether there was a plausible plausible color federal defense.

So basically what Judge Jones says, look, if the facts show that it times you operated under the scope of your job and it times you didn't, that's not enough to give you federal jurisdiction if you're only being prosecuted for those specific acts that were related to your office. So look at the charged conduct and whether that relates to the color of your federal office. And what does that mean in the context of RICO and RICO conspiracy?

We've done many hot takes on this and Popoq has discussed this in great detail. But it basically means talk about the heart of the claims, right, the gravamon or the heart of the claims. And what really is the heart of the claims here? And here Judge Jones says the act or the heart of the claims is Rico conspiracy. It's Rico, right? It's not any specific overt act. It's not any one thing. It's the conspiracy to join this enterprise to try and steal the election. And where Judge Jones really was struggling based on Meadows' testimony was what's his job description,

right? What's in the color of your office? Because he had to determine whether it was necessary within your job description. And Meadows basically said, everything except stumping on the campaign trail for Trump is in my job description.

I set up phone calls, I set up meetings, but so Judge Jones basically says, I can't really credit your job description because you refuse to say what's in the outer bounds of your job description. So what I'm going to do is I'm going to apply the Hatch Act, which is a law, a civil law, that says basically it prohibits an employee, a federal employee, from using his official authority to influence for the purpose of affecting the result of an election or participating in political activity. Sound familiar for the purpose of affecting the result of an election. So the court basically said that that had found that the job doesn't include working for the Trump campaign. That's fairly

clearly what the Hatch Act would not permit. So the chief of staff's role does not permit working for the campaign. And Judge Jones ultimately ruled that Meadows did not meet even the quite very low. He said quite low threshold for removal. He said that of the eight overt acts that you were charged with, only one occurred within your job description, Mark Meadows. That's when you sent a text message to the US House of Representatives members, Scott Terry from Pennsylvania, where you asked for a phone number for the Pennsylvania legislators

and because you said the president wanted to chat with them, he says, I'll give you that. That was within your job description, but everything else was political. He also found there was no federal defense. Within minutes, essentially, very quickly shortly after, response to this decision, Meadows

filed an emergency motion for a stay pending appeal where he's wanted to basically press pause on this order, rejecting removal to federal court. He filed this under civil rule 62 and local rule 7.2B where he asked the court to stay the effect of this remand order because what happens, Judge John says, I don't have jurisdiction, so I'm remanding this back down to state court to Judge McAfee. But he's saying, can you please stay this because I'm going to seek an expedited review in the Court of Appeals in the 11th Circuit?

And I have the right to appeal, which everyone agrees that both sides have the right to appeal. And a state of the remand order will help prevent this case from, and the quote in there was, will help prevent the case from becoming a, quote, shuttlecock back and forth between state and federal court. So I thought that was interesting. They were citing a case there, but basically they're saying, looks not back this back and forth, back and forth, back and forth. Just stay at wall. We go through our appeals and don't have it go down to have it remanded back to to state court. So he's saying that he wants this

stay, Metta wants this state to prevent what he's calling an irreparable loss. So given the emergency or the urgency of the matter, he said he's going to ask the 11th Circuit to pause this order unless Judge Jones grants his request for a stay beforehand. So he's basically saying Judge Jones, I'm giving you a chance to stay it. If not, I'm gonna ask the 11th Circuit to stay it.

But what I really don't want is for what I really don't want is for this case to go back down to Georgia for the case to proceed. And right now, all the defendants are joined together. So they haven't been severed. And two of the defendants who demanded a speedy trial have their trial set for October 23rd. So he's saying that's what his irreparable harm is. He says he meets the elements of an emergency stay that there is a substantial case on the merits,

meaning that judge Jones, you yourself said this is a novel question of law. So I think that I have a decent chance of winning, and I will be irreparably harmed because I could be prosecuted and incarcerated if this happens, and the state won't be prejudiced either, and this will be in the public interest. I was about to do a hot take on this, and update everybody on where we are, and within seconds, what happens at the 11th circuit, Popa. I'm so excited to say that this episode is brought to you by 8th Sleep. I can say from experience 8th Sleep is truly a life-changing product. My old mattress was old

school and went overheat while my husband and I were in it together making for a terrible night's sleep. If you're a woman of a certain age like me, you know there's nothing worse than tossing turning over heating or freezing all night because you have trouble regulating your body temperature. The pod cover by 8 sleep will keep you cool at night all the way down to 55 degrees Fahrenheit so you can wake up fully refreshed or warm up with just the touch of a dial on your mobile device. The pod cover by 8 sleep fits on any bed just like a fitted sheet or a mattress topper.

It will improve your sleep by automatically adjusting the temperature on each side of the bed based on you or your partner's individual preferences and needs. It can cool down and warm up and adjust base on the phases of your sleep and the environment you are in. I love 8-sleep because we spend almost half our lives in bed improving our sleep routine habits and overall sleep quality will make all the difference in your day. I love the temperature control and both me and my husband can set each of our sides to each of our likings. I also love the gentle vibrating alarm I set each morning to wake up. I wake up feeling refreshed after a great night's sleep, allowing me to start

the day off right. Eight sleeps technology is incredible and while the temperature for me is the biggest game changer, the pod cover has other amazing features that my husband loves. For example, thanks to the pod sleep and health tracking, you can wake up to a personalized sleep report for you each morning that offers insights into how certain behaviors like late night exercise or caffeine impact your sleep and overall health. It also tells you how much sleep you got, whether the quality of your sleep, etc. The pod cover by 8 Sleep truly provides the ultimate sleep experience and I've never experienced sleep like this before. The temperature regulation

technology has truly been a lifesaver for me. So if you're a woman of a certain age like me and you know who you are, invest in the rest you deserve with the eight sleep pod. Go to eightsleep.com slash legal AF and save $150 on the pod cover. That's the best offer you'll find, but you must visit eightsleep.com slash legal AF for $150 off. So get the eight sleep pod cover now with shipping within the US, Canada and the UK and select countries in the European Union on Australia. That's e IGHT SLEP.com slash legal a F and save $150. We've got an 11th circuit that appears to be interested in an arcane area of removal, federal officer removal. As you said, Karen, the reason we're even talking about an appeal is because normally a federal

judge's decision whether to have a case come from state over to federal court is not appealable. It is, unless it's under the unique federal officer removal provision, and then you do get an appeal. That's why we're even talking about an 11th Circuit appeal. I thought Judge Jones, as you laid out, did a very good job of arguing why even under 11th Circuit and Supreme Court precedent, Mark Meadows is not entitled to have his case removed to take his the trial of his case and all the pretrial activities pre-be presided over by a federal judge not not judge McAfee in Fulton County. Again, for those that are new to our pot takes and new to legal AF on the Midas Touch Network,

it doesn't shed Fanny Willis as the Fulton County prosecutor. It doesn't shed the Georgia law. It doesn't shed the indictment under Georgia law. It's all Georgia, Georgia, Georgia. It's just then another courthouse presented over a federal judge, even if Mark Meadows wins. Reason he's doing it. A couple of reasons, delay, although it's not going to be delayed based on how fast.

The 11th Circuit is requiring briefing on a new issue, which is in two days. He wants a different jury pool. It's a slightly broader group of people that would be part of the jury pool in federal court that in state court and he wants a fast track to federal appellate courts like the 11th Circuit and the US Supreme Court and not be in Fulton County. And plus Fulton County is moving that meat grinder is moving at a velocity of which I'm not familiar, even though I practiced in rocket dockets. It is moving quickly. People are being, people's try two of the 19's trial

is in six weeks. And so he's worried about all of that and wants a little more deliberative sobering process over at federal court. However, the one issue that Judge Jones did not address, in fact, I haven't seen addressed by any federal judge of late on the issue of federal officer removal entitlement, including we just went through this over the summer. It's hard to believe it was the top of the summer, but in May, you, me, and Ben, while

we two of us run holiday, we jumped in for a hot take and a podcast to talk about Trump's attempt to remove his state court prosecution in New York from your old office. And Judge Hellerstein, a federal judge, went through a similar analysis there and ruled that Trump wasn't entitled, not because he wasn't a federal officer, but because Hush Money cover up of your former mistress or sex act person is not a federal, colorable part of your office. It's not part of your job description.

But he never talked about the issue that seems to be of concern to the 11th Circuit, which is where we are, where we're at now in this hot take. The 11th Circuit, we don't know the panel yet. It always is a three-judge panel. It's randomly assigned. Could be the chief judge, William Pryor, who presided over things related to judge Canon down in Florida, Mar-a-Laga, or it may not be. We'll see who the three-judge panel is. But in advance, the panel without revealing their identity, because they don't want that to, you know, sort of impact or influence, one way or the other, what people write in their papers has had the clerk issue a request. No, a command that both sides need to brief this following issue. An issue that

never came up at all by anybody, including Judge Jones, when he wrote his order denying the removal for Mark Meadows, which is, hey, everybody, does the federal statute on federal officer removal apply to a former federal officer? Because we all agree Mark Meadows, is no longer a federal officer. And we want you to comment on the language of the particular statute. And what it says now, if you go to the language of that particular statute, it is written, the federal officer removal statute is written in the present tense. It says a federal officer has the right to seek removal of a case.

It doesn't, it's not written as former prior or while he committed the thing alleged, he was it or she was an officer, it says officer. I never really focused on the grammar of it. But look, judges do. The grammar of something, the language that's chosen, the specific words that are chosen by the framers and the Congress in this matter is important. And so when you look at that particular language and we'll get it up on the screen, you see

that in the 11th, in this 1442A language, it talks about officer. They want the parties to talk about the other removal that's right below it that talks about when an alien person, not from this country, has the right to or a person who's been sued by an alien has the right to take that case to federal court. And there, Congress used language that suggests that, or requires that the person be a certain status at the moment of the removal, but didn't use that same language in talking about the officer,

but used the presence of officer. So they want to know, does it matter that Mark Meadows was not an officer when he filed his motion or notice for removal just a couple of weeks ago because he's been out of that office since January of last year. And so that's interesting. I don't think it bodes well for Mark Meadows. It appears to be a panel that's looking for a way not to assert its jurisdiction to rule on the case because the first things that a pellet courts do, federal pellet courts especially, even up to the Supreme Court.

The first thing they do is look for the exits and look if there is a way not to even rule on the case because there's either lack of standing by the party that's brought the case or the court just doesn't have jurisdiction over the matter. And so that's the first thing because these courts are courts of limited jurisdiction. They don't say everybody come, appeal whatever you want, we'll listen to it. No, they have limited power and limited jurisdiction by way of the constitution and otherwise and by court precedent and rules and law. And so the fact that they're asking,

should we even be here? Do we even need to be resolving this issue? Can't we just end it right now because we make the decision that this only applies, this federal officer removal statute only applies to current, not former. Now, I looked up the law before we got on this hot tick. I can tell you there is very little law

on the area of this particular provision and how it's applied to former versus current. Everybody just makes the assumption that if you were, if you had the title of a federal officer, you're able to use this. But if you look Karen at the underpinnings of the, what's the reason we have this rule in the books? It is to stop states from meddling in federal functions. But that's not what we have here. We don't have, if the indictment is right, okay, we all believe it is, that we don't have a state meddling in Mark Meadows affairs. We have Mark Meadows and the federal officers meddling in a state prosecution. The arrow is running in the different direction, meaning it if you look, if you have to look

to the public purpose of what Congress intended to get the intent of the statute, which is what these this briefing that they now require is going to address on both sides over the next couple of days, then you have to say, well, why are we even here? He, I mean, if the purpose of federal officer removal is to stop a state from interfering on the federal side and criminalizing something because they don't like a federal function, that's not the RICO conspiracy that's been alleged. So Karen, what do you think about this present tense use of the term officer, their request

that you compare and contrast the two sections of the removal statute to comment on that and then sort of bringing in this the rational intent? And what do you think it means for meadows and his chances of success on appeal? Well, it's interesting because Fanny Willis conceded that he was a federal officer. So now that she's being asked to brief this, what is she going to say? Oops, I made a mistake. He's not he's not a federal officer or is she going to say, I think he is a federal officer. So it's just sort of interesting the situation. She's put herself in by conceding that first prong.

She argued most of her, she hung her argument on the second and third prong of federal officer removal. I think the courts are going to look at all the cases that both civil and criminal. There have been many, many, many removal cases that have been brought. As you said, the law doesn't appear to address this question, but you can still look at the cases and see, are the litigants, are they, you know, are the defendants in those cases? Are they former or current? Are they still working? Like you can imagine an FBI agent

who shot someone during search warrant, resigning or getting fired and maybe getting prosecuted and still seeking removal. I think there'd be strong argument to say, well, all the cases say that, that this, even though they're a former, they still got removal that that's what the law is.

But if no courts have ruled on that, they could rule differently, right? They could say, look, no one's ever addressed this issue. I'm going to now look at the congressional intent behind this. I'm going to look at analogous types of law like the alien removal where Congress expressly included language and since this is silent, you know, Congress knows how to put in expressly language if they wanted it, but they didn't, you know, there's, they will do a deep dive analysis behind both the legislative intent as well as the plain language used and they will make a ruling if there's a split

in circuits, for example. So if they, let's say they rule that it only applies to current, not former yet, there's all these other cases out there that allowed former federal officers to seek removal, that's recipe for Supreme Court, right? I mean, Supreme Court will take this anyway, just given who, you know, the case and who the litigants are, but I still think that could be, that could give rise to Supreme Court, you know, looking at this for that reason too, having a, what they would characterize as a split in the circuit. So, you know, it's

a very interesting legal question that they have until tomorrow to brief. So, it's on a very fast track. I don't think this is going to be, you know, they give a 10 page limit so that they don't put a horn book into evidence, you know, and really just make it kind of crisp and quick. And like see, we have a legal AF coming, full legal AF coming tomorrow. I'm sure we will be able to brief this. We'll have more information that we can bring to everybody and discuss this further. So, you know, we'll be doing this tomorrow. Just two more things. Number one, speaking of LegalAF, like my t-shirt.

Wasn't sure where that was going, but I appreciate it that. And number two, Popok, I wanted to officially congratulate you on your big news of the weekend, where you finally made it official and you got married so congrats to you and I'm sure you're gonna break lots of hearts you know many many people out there but but congrats to you. Appreciate it, appreciate that colleague, and part of my legal AF family. So that's a wrap. We've at the end, right? So follow Karen and me on Wednesdays on legal AF on the Midas Touch Network, bed and me

on Saturdays on the legal AF network. And check out the new website for the Midas Touch Network, which is at WWW. I guess we're still using that. MidasTouch.com for all Karen writes there. They got a all newsroom now that's writing, original content, our audio video is all there as well. It's a great place to hang out during the week and help Midas Touch get to 2 million free subscribers

on YouTube. Be the 2 millionth, maybe Karen will throw in one of those nice t-shirts. Until then, until the next hot dick that Karen and me do together. I will commit to that. I will send a t-shirt. Okay, perfect. Be the two millionth person.

Until the next hot dick for Karen Friedman, Agniflo and Michael Popuck. This is Michael and Karen, signing off. Hey, MidasM Mighty. Love this report. Continue the conversation by following us on Instagram. At MidasTouch to keep up with the most important news of the day. What are you waiting for? Follow us now.