Should Donald Trump move his Georgia trial to federal court?
For reasons both specific and structural, the latest criminal charges against Donald Trump stand apart from their predecessors, marking perhaps the most immediate and acute legal threat to the former president to date. Alleged by Fulton County, GA, District Attorney Fani Willis to have led a "criminal enterprise" to subvert the results of the 2020 presidential election, Trump has added 13 felony counts to his already expansive list of criminal charges, this time based on Georgia state, rather than federal, law. While Trump's 2024 presidential run is widely believed to be fueled at least in part by the hope that it will negate his current legal perils, state charges — and the particulars of Georgia law, especially — render the possibility of both presidential and state pardons virtually null.
It should come as little surprise, then, that Trump is reportedly planning to request his trial be shifted from Fulton County to federal court — "removed," in the legal parlance — on the grounds that the behavior for which he's charged was conducted as part of his presidential obligations. It's a strategy he has unsuccessfully tried before, although in this instance "it could work," The Wall Street Journal concluded.
What's behind the former president's renewed faith in the federal court system? And is there a chance his removal plan could genuinely work out in his favor? Perhaps unsurprisingly, opinions vary.
'Nonzero chance of forcing his way'
Trump is widely expected to follow his former Chief of Staff and fellow Georgia co-defendant Mark Meadows, who this week filed a request to remove his trial to federal court on the grounds that his actions were committed during his service as a White House officer. Given that Trump will almost certainly follow suit, "talking about anything other than the federal removal statute is putting the cart before the horse," Georgia State University Law School Professor Eric Segall explained to The Guardian. Moreover, there's a "nonzero chance" of Trump "forcing his way into federal court," University of Texas School of Law Professor Lee Kovarsky told the Journal, citing defendant-friendly precedent in the Court of Appeals for the Eleventh Circuit, which has jurisdiction over the request.
The benefits to Trump of a switch to federal court are fairly straightforward. "The only conceivable advantage" for Trump is that federal court would "draw a jury pool from the entire Northern District of Georgia — an area encompassing both urban, suburban and rural areas — rather than the heavily Democratic jury pool found in Fulton County courts," according to The Independent. But Politico disagreed, noting that a shift to federal court also affords Trump "at least a fair chance of drawing" one of the four out of 15 judges he had appointed to the Northern District of Georgia District Court bench.
In fact, simply making the request for removal could be to Trump's benefit, even if it's ultimately shot down. "Delay is his friend," former Federal Prosecutor Neama Rahmani said to ABC. "Even if he loses, he's going to slow the process down." Georgia Defense Attorney Andrew Fleischman agreed when speaking to the Journal, predicting that not only are there "going to be appeals" but that the process could ultimately "reach the United States Supreme Court." Given DA Willis' hope for a speedy court date that would place opening arguments smack in the middle of Trump's already busy campaign-and-trial schedule this coming spring, "six months is not reasonable," Segall said, predicting months upon months of appeals no matter which way the removal decision goes.
'Federal pardon power would be unavailable'
While a shift from local to federal court would offer Trump some structural advantages in terms of jury selection and scheduling, it crucially would not alter the fundamental nature of the trial itself. The charges would remain a matter of state, rather than federal law, and would continue to be prosecuted by Willis, "meaning Trump likely couldn't pardon himself if he were to be reelected and convicted," the Journal concluded. Cornell Constitutional Law Professor Michael Dorf agreed, telling ABC that "if he were to be convicted, he would then be convicted under state laws" and "federal pardon power would be unavailable."
For her part, Willis seems prepared to head off Trump's attempted shift at the pass, including in her indictment instances in which he acted long after he had left the White House. If Trump can demonstrate a "colorable claim that he was acting in part as president" that would present a strong argument for moving the case to federal court, Georgia State University Law Professor Anthony Michael Kreis told Politico. By including chargest stemming from actions taken on September 17, 2021, Willis' team is "trying to say, 'No, this was never about Donald Trump in his official capacity as president.'"
Trump's attempt to shift his New York charges stemming from alleged hush money payments to adult film star Stormy Daniels in the run-up to the 2016 election was rejected by U.S. District Judge Alvin Hellerstein this past June. And while the nature of the crimes for which Trump has been accused in each case differ significantly, Brookings Institution Senior Fellow Norm Eisen sees them both as examples of the former president hoping to use the protections of his one-time office to allow for behaviors well beyond the scope of the Oval Office. "An attempted coup is just as remote from the presidential official job duties under the Constitution as fabricating documents to cover up hush money payments that help you get to the White House," Eisen told The Independent. "Both are unrelated to presidential duties."
