An appeals court ruled Thursday that four people charged alongside former President Trump in his Georgia election racketeering case cannot move their charges from state to federal court.
Known as removal, federal officials are entitled to move courts when they are being prosecuted under “color” of their office and they present a plausible federal defense.
Trump-era Justice Department official Jeffrey Clark and three pro-Trump individuals who signed documents purporting to be presidential electors despite President Biden’s 2020 victory in Georgia — David Shafer, Shawn Still and Cathy Latham — attempted the gambit as part of an attempt to assert immunity. They all appealed after a district judge ruled against them.
A three-judge panel of the 11th U.S. Circuit Court of Appeals on Thursday affirmed those decisions, ruling that removal is not available for former officials.
“The statute applies only to current officers,” the court’s unsigned opinion in Clark’s case reads.
Craig Gillen, Shafer’s attorney, declined to comment. The Hill has reached out to the other defendants’ attorneys for comment.
Thursday’s decision came with little surprise, as the 11th Circuit previously ruled that Trump White House chief of staff Mark Meadows could not move his Georgia charges to federal court for the same reason. The panel on Thursday noted “we are bound to follow” that decision.
Meadows has appealed his loss to the Supreme Court. The justices are scheduled to discuss whether to take it up at their Nov. 8 closed-door conference, according to the court’s docket.
Circuit Judge Britt Grant, an appointee of former President Trump, wrote a separate opinion that she believed the decision in Meadows’s case was incorrect.
“Rather than declaring that Mr. Shafer is ineligible for federal-officer removal because he is no longer (even arguably) a federal officer, I think the better course would be to consider the merits of the district court’s thoughtful conclusion that he was not ever a federal officer. The same is true for the other defendants. But because our Court’s precedent demands otherwise, I respectfully concur,” Grant wrote.
Circuit Judge Robin Rosenbaum, an appointee of former President Obama, also wrote separately to explain that even if the protections did extend to former officials, none of the four defendants would be able to remove their charges.
Invoking “The West Wing,” she wrote that the three so-called fake electors could not claim to be legitimate federal officials.
“Defendants were no more presidential Electors simply because they give themselves the title than Martin Sheen was ever the President because he went by President Bartlet,” Rosenbaum wrote.
As for Clark, Rosenbaum wrote that the allegations against him didn’t fall within his job description at the Justice Department.
At the time of the 2020 election, Clark oversaw the Justice Department’s environmental division and, in an acting capacity, the civil division.
He is charged over his desire to send a letter to Georgia authorities asking them to hold off on certifying their 2020 election results while the Justice Department investigated. Clark has argued Trump changed his job responsibilities to get involved with the 2020 election.
“The federal-officer removal statute is not a get-out-of-state-court-free card for federal officers,” Rosenbaum wrote.
Updated at 4:02 p.m. EDT
