Mark Meadows’s Motion for Removal: How NOT to Make a Legal Argument to a Court

The day after Mark Meadows was indicted in the Trump prosecution in Georgia, Meadows’s lawyers filed a motion to remove the state prosecution to federal court pursuant to a statute intended to prevent state officials from interfering with the activities of the federal government. 28 U.S.C. § 1442(a)(1). In their motion, the lawyers violated two cardinal rules of advocacy: (1) don’t misstate the facts or law of a case you are citing to the court; and (2) don’t ignore cases that are adverse to the argument you are making to the court.

          So how did they violate those rules?

          One of the first cases Meadow’s lawyers cited to the court was In re Neagle, 135 U.S. 1 (1890). They claimed that this case was an example of a murder charge against a U.S. Marshal being removed from the jurisdiction of California. This is what the lawyers wrote: “murder charges that have been successfully removed. E.g., In Re Neagle, 135 U.S. 1, 71 (1890).” Notice of Removal p. 2. The first problem with this assertion is that there was no general removal statute in existence in 1890; which explains why Neagle did not involve removal at all. In Neagle, a deputy U.S. Marshal was taken into custody after he shot and killed a man who was threatening a Supreme Court justice. For some reasons, not reflected in the decision, California did not think it appropriate to save the life of a justice of the Supreme Court of the United States and put Neagle in jail. The United States went to a federal district judge on a writ of habeas corpus and got the Marshal out.

          Now it is true that Neagle was physically removed from state custody, but in no sense was his prosecution removed from state court to federal court. What accounts for such an error? I am sure that Meadows’s lawyers did not intend to mislead the court. But it is clear that the lawyers drafting the motion never read the case.

          Their second mistake was their failure to address the recent case of New York v. Trump anywhere in their motion.

          Technically, an attorney is not required to inform a court of a case adverse to their position by a court outside of their court’s jurisdiction.  The rule is simply that prior cases of foreign jurisdictions are not precedent that a court needs to follow. Even though a decision of another court is not binding authority in your court’s jurisdiction, nevertheless, your judge is going to want to know about it so that the court can consider the other judge’s reasoning.       

          From a purely tactical perspective, if you know about adverse authority, you are kidding yourself if you think your opponent won’t, so there is no way for you to avoid having to address the case or cases at some point, either in a responsive pleading or at a hearing on your motion. Hoping no one will learn of the case is just plain stupid. So there is nothing to gain, and much to lose, by not bringing the case up first.

          This is an error orders of magnitude greater than just misstating a decision as they did with Neagle. The case they failed to mention was one that the judge surely knows about: New York v. Trump, --- F.Supp.3d ---- (2023). In that case, a federal judge denied Trump’s lawyer’s motion to remove his New York state prosecution to federal court. In so doing, the court rejected the central argument raised by Meadows’s lawyers: that the petitioner’s actions were committed in their official capacity, and therefore petitioner was absolutely entitled to removal to federal court.

          Two things are true. Meadows’s attorneys were under no obligation to mention New York v. Trump in their motion. They may even have thought, why discuss the case. The judge already knows about the case so let’s see what the government says first and then we can address it. No one can accuse us of hiding the case from the court.

          While that sounds plausible, it is not the kind of mistake experienced counsel would make.

          As any experienced litigator (or psychologist) will tell you, once someone’s mind is made up, it is very hard to change it. Making the first argument increases your chances of disposing the court in your favor. That’s an advantage you don’t want to pass up unless there is a damn good reason to do so.

          Second, you want the court thinking about the merits of your position. You don’t want the court asking itself why you haven’t mentioned a leading opinion on your issue. And you certainly don’t want the judge to conclude that you don’t know how to distinguish the case. 

          Moreover New York v. Trump was an easy case to distinguish.  Trump’s New York case involves an allegation that he created false business records in order to cover up his payment of money to a porn star he slept with. That has absolutely nothing to do with his subsequent duties as the President of the United States. In Meadow’s case, his argument may not hold much water, but he has a non-frivolous claim that the executive—which Trump was the head of—had an interest in making sure that the 2020 election was legitimate. That at least distinguishes Meadow’s argument before the Georgia court from the decision by the federal judge in New York. Clearly there was no reason why these lawyers would have waited to hear what the government’s lawyers would say.

          So what is the explanation? New York v. Trump was decided in July. The Georgia investigation was no surprise, so Meadow’s removal motion was probably drafted months before the Trump ruling and before the Georgia indictment. My guess is that no one bothered to read the motion over again before they filed it.  

          Why were the lawyers in such a rush to file this motion? My guess is that they were under pressure from their client to file something right away to demonstrate that Meadows could not get a fair trial in Georgia state court. If so, they made the same mistake lawyers for Trump have made over and over—bowing to their client’s will over their own judgment. After the hearing before the court on Friday, they won’t make the mistake again.