The removal dilemma: Trump’s fatal choice

With Mark Meadows appealing the denial of his petition to remove his Fulton County, Ga., criminal case to the federal court, and other defendants waiting in the wings with removal applications, former President Trump, after keeping everyone in suspense for nearly a month, elected not to seek removal. Let’s examine what is behind his decision to stay in state court.

Last month, Trump notified the Fulton County court that he may file to remove, which the new filing says was done “in an abundance of caution.” A federal officer charged with a crime in a state court may seek removal to the federal court if acting officially at the time and if he has a colorable federal defense. Trump tried to run this one in New York and lost. 

Trump’s “updated notice” of nonremoval, filed Sept. 28, was a legal move packed with a political dimension. Trump’s decision, his updated notice said, is “based on his well-founded confidence that this Honorable Court [i.e., the Georgia state court] intends to fully and completely protect his constitutional right to a fair trial and guarantee him due process of law throughout the prosecution of his case.” As goes without saying, so the federal court would have done.

Some legal analysts had predicted that Trump would try to remove the case. His far-fetched claim that he is immune from prosecution for everything he did in the White House by virtue of the Constitution’s Supremacy Clause would perhaps fare better in the federal court. Even if he failed to succeed before Obama-appointed Federal Judge Steve Jones, moreover, his eventual appeal to the conservative 11th Circuit would fit nicely with his notorious strategy of delay. 

If successfully removed, the case would still be prosecuted by Fulton County District Attorney Fani Willis under Georgia criminal law, but the federal jury pool would be more favorable. If you’re Trump, you want MAGAs in that jury box. Biden crushed Trump in Fulton County in 2020, with Trump garnering only 26 percent of the vote. This would mean a statistical probability of two or three on the eventual jury of twelve who voted for Trump. In the 10 counties comprising the Northern District of Georgia, including Fulton, the Trump count spikes from 26 percent to 30 percent. Most defendants in a criminal case would rather have a better jury pool than a better judge. After all, it takes a unanimous vote of 12 to convict. 

Judges routinely tell juries to put aside their preexisting beliefs. But every trial lawyer knows that, as appellate Judge Jerome Frank trenchantly observed, “prejudice has been called the thirteenth juror, and … Mr. Prejudice and Miss Sympathy … must nevertheless be reckoned with.” That said, in the case of Paul Manafort, Trump’s 2016 campaign manager, a woman on the jury who described herself as a strong pro-Trump voter convicted Manafort of tax fraud because of the evidence. (Trump later pardoned Manafort.)

There was the cautionary factor, however, that Jones, an Obama appointee, might well speed the trial along much faster than Republican Judge Scott McAfee presiding in Fulton County’s state court.

It may be that concern over a trial date tipped the balance when it came to choosing the battlefield. The federal court was less likely than the state court to accept Trump’s arguments for postponing the trial until after the election. Procedurally, Trump was caught between a rock and a hard place.

The salient driver in Trump’s decision was likely that he would have had to testify at the removal hearing if he had any hope of succeeding. Meadows testified at his hearing and only got himself in deeper, admitting to damning facts that might seal his fate for his immunity defense wherever the case is eventually tried. Meadows testified how closely he was involved in Trump’s plans, revealed he had no reason to doubt former Attorney General Bill Barr’s assessment that there was no election fraud, and made clear that much of what he did was political.

Defendant Jeffrey Clark declined to testify at his hearing, leaving Jones with a thin record to support removal. You remember Clark. As acting assistant attorney general, he drafted a letter to Georgia officials representing that there was a nonexistent Justice Department investigation of election fraud. Jones denied Clark’s petition out of hand.

Trump is, from a defense lawyer’s perspective, an armless quarterback. When he articulates his theories and explanations, bristling with lies and false claims, he demonstrates an unerring instinct for his own jugular. It would be an act of malpractice for his lawyers to let him testify — but unless he testified, how could he conceivably establish his case for removal?

There are other considerations as well. To remove to federal court, Trump must say he was as president a “federal officer.” In defending suits to disqualify Trump from the ballot as insurrectionist, he may wish to argue the opposite — that he was not a federal officer for purposes of Section Three of the 14th Amendment. Of course, he has already claimed he was a federal officer in his removal petition in New York last May. 

Trump’s decision to remain in state court left his co-defendants twisting in the wind. After Meadows and Clark, those remaining who had sought removal were the three fake electors: David Shafer, former chairman of the state Republican Party; Shawn Still, former finance chairman of the state party and now a state senator; and Cathy Latham, a member of the state central committee. The latter three were not federal officials, but their argument is that they were acting at the behest of Trump. “I was only following orders.” We last heard that one at Nuremburg. Jones was quick to deny their petitions as well. And then there were none.

Yogi Berra famously said, “When you come to a crossroads, take it.” The trial of a criminal case is a series of risky roads not taken for both sides, full of hazards, as all paths are. In the last analysis, Trump’s lawyers must have decided in balance that the argument for remaining in Fulton County was far more persuasive.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast “Conversations with Jim Zirin.”