Paul Clement, a former solicitor general and appellate attorney who has scored some of the most significant victories before the United States Supreme Court, recently joined the powerhouse legal team representing Donald Trump’s former Chief of Staff Mark Meadows. Clement has already upped the ante with the petition he filed earlier this month in the U.S. Court of Appeals for the 11th Circuit by highlighting that unless Fulton County District Attorney Fani Willis’ criminal vendetta against Meadows is removed to federal court, Republican prosecutors will have a green light to eke out revenge.
In that petition, Clement asked the entire 11th Circuit to reconsider the earlier decision by a three-judge panel holding that Meadows could not remove to federal court the criminal case Willis launched against him last year.
Clement’s strong reputation signals that should the 11th Circuit deny rehearing — or grant rehearing and again hold that Meadows cannot remove the case under federal statute — Meadows’ legal team is prepared to seek review by the U.S. Supreme Court. Having Clement on the Supreme Court’s petition for review will add an invaluable gravitas to the case.
“We are all extremely pleased to have a Supreme Court and appellate litigator of Paul’s stature, experience, and expertise on this legal team,” George Terwilliger of Terwilliger Law PLLC, and one of Meadows’ co-counsels who also served as No. 2 in George H.W. Bush’s Justice Department, told The Federalist.
Willis’ Lawfare
In August 2023, Willis, the elected prosecutor in deep-blue Fulton County, Georgia, charged Meadows and 18 others, including former President Trump, in a sprawling, 98-page indictment. Of the 41 counts the county prosecutor patched together against the various Trump-connected defendants, only two targeted Meadows.
First, in Count 1 of the indictment, Meadows was charged with an alleged racketeering conspiracy to “change the outcome of the election in favor of Trump.” Willis identified eight actions Meadows allegedly took in furtherance of that supposed conspiracy — “each took place during his service as Chief of Staff.”
Willis, who is now facing her own scandal, also charged Meadows in Count 28 with allegedly soliciting a public officer to violate his oath of office. That second charge rests on Meadows facilitating a telephone call between then-President Trump and Georgia Secretary of State Brad Raffensperger. The indictment claims that during that call, Trump “asked Raffensperger to unlawfully influence the election’s outcome.”
Of course, as has been hammered repeatedly, a transcript of the Jan. 2, 2021 call shows Trump did not ask Raffensperger’s office to “influence the election’s outcome,” much less do so “unlawfully.” Rather, the attorneys representing Trump in his post-election challenge to the Georgia count “ticked off the numerous categories of illegal votes of which they had concrete evidence — some 25 categories.” The state court had refused to act on Trump’s legal case challenging the election results, so his legal team “asked the secretary of state’s office to investigate the problem.”
Yet Willis convinced a grand jury made up of Fulton County residents to indict Meadows based on that bogus premise. And with some 73 percent of Fulton County voters casting their ballot for Joe Biden in 2020 compared to 26 percent favoring Trump, when the indictment dropped, Meadows understandably worried a stacked get-Trump jury would convict him of the charged crimes merely because he was the former president’s chief of staff.
Attempt to Remove
So the day after the Fulton County indictment dropped, Meadows filed legal documents to remove the state criminal case against him to a federal court in the northern district of Georgia, based on a federal statute codified at 28 U.S.C. § 1442(a)(1). That federal statute provides that “any officer (or any person acting under that officer) of the United States,” may remove to a federal district court a “criminal prosecution that is commenced in a State court,” that is “for or relating to any act under color of such office…”
Federal district court Judge Steve Jones, a Barack Obama appointee, held that Meadows had failed to show “a nexus” or a “causal connection” between the “heart” of the Fulton County criminal charges and Meadows’ asserted official authority. Jones concluded that Meadows could not remove the case to federal court under Section 1442(a)(1). The court then remanded, or sent back, the case to the Fulton County state court for Willis’ prosecution to continue there.
Meadows’ legal team promptly appealed the federal trial court’s decision, with the case docketed at the 11th Circuit, which hears appeals from federal district courts located in Georgia, Alabama, and Florida. Before the briefing of the appeal, the 11th Circuit directed the parties to address a question the Fulton County prosecutor had not raised, namely whether Section 1442(a)(1) even applied to former federal officials.
Following briefing and oral argument before a three-judge panel of the 11th Circuit, the court held on Dec. 18, 2023, that Meadows could not remove the Fulton County criminal case to federal court under Section 1442(a)(1) because that section applied only to “officers” and not “former officers.” In the opinion, authored by Judge William Pryor, a George W. Bush appointee, the court reasoned that the ordinary meaning of the term “officers,” does not include “former officers.” It further reasoned that because Congress had expressly created removal jurisdiction for former civil officers in Section 1442(b), the language variation confirmed Section 1442(a)(1) did not subject former officers to removal proceedings.
Section 1442(b) provides that “[a] personal action commenced in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State,” removal to federal court is permitted. The 11th Circuit explained that Congress’s inclusion of the “who is, or at the time the alleged action accrued was,” language in this removal statute showed lawmakers did not intend for Section 1442(a)(1) to apply to “former officers,” since no similar language was included in that provision.
The 11th Circuit’s panel decision hedged its holding, however, by ruling that “[e]ven if section 1442(a)(1) applies to former officers, we would still affirm because Meadows fails to prove that the conduct underlying the criminal indictment relates to his official duties.” Here, the court held Meadows needed to establish “a causal connection between the charged conduct and asserted official authority.”
The 11th Circuit then reasoned that Meadows’ culpable “act” was his alleged association with the conspiracy that sought to overturn the 2020 election. Meadows’ “color” of office did not include superintending state election procedures or electioneering on behalf of the Trump campaign, the court continued, and therefore, “Meadow’s association with the alleged conspiracy was not related to his office of chief of staff.”
Judge Robin Rosenbaum, an Obama appointee, and Judge Nancy Abudu, a Biden appointee, joined Pryor’s decision. Judge Rosenbaum, however, authored a separate concurrence joined by Judge Abudu, which noted that Meadows was not entitled to removal under Section 1442(a)(1) because he “has not established the State has charged him for or relating to an act under color of his office as White House chief of staff.” The concurrence sought to highlight the “nightmare scenario” the court’s holding created — and entreat Congress to promptly amend the statute to prevent future possible political prosecutions. Judge Rosenbaum posited:
Imagine that the day the President of the United States leaves office, sixteen states where his policies were unpopular indict him and all his Cabinet members, simply for carrying out their constitutionally authorized duties.
Under Section 1442(a)(1), the concurrence continued, “the former President and Cabinet members would have no guarantee that a federal court,” would ever consider whether the U.S. Constitution protected the previous administration from local state court prosecutors. And “given the local sentiment that led to the indictments in this hypothetical,” Judge Rosenbaum noted, it is entirely possible this scenario would deny the former president and his cabinet a fair, correct, and prompt resolution of the politically motivated charges.
“In short, foreclosing removal when states prosecute former federal officers simply for performing their official duties can allow a rogues state’s weaponization of the prosecution power to go unchecked and fester,” Judge Rosenbaum wrote. But because that is how Congress wrote Section 1442(a)(1), and the court’s job is to “faithfully interpret the laws as they are written,” the two judges joined the majority opinion, holding that removal is not available to former officers. Simultaneously, however, they “urge[d] Congress to promptly add former federal officers to a revision of Section 1442(a)(1).”
Paul Clement on Board
Following the Dec. 18, 2023 ruling rejecting Meadows’ attempt to move the Fulton County state prosecution to federal court, former Solicitor General Paul Clement filed an appearance in the 11th Circuit. On Jan. 2, Clement filed a petition for rehearing, asking the entire 11th Circuit to reconsider the opinion of the three-judge panel.
Clement’s petition for rehearing presented a perfect-to-the-letter argument for why the 11th Circuit should rehear Meadows’ appeal and hold that he had the right to remove the criminal case to federal court. That is to be expected, as Clement is one of the best — if not the best — appellate advocates of this century. As The Washington Post wrote over a decade ago, “conservative and liberal lawyers agree” that when Clement “is on his game, he is a grandmaster.”
Clement has only perfected his game over the last dozen years. He can now boast of having argued more than 100 cases before the United States Supreme Court, where he once clerked for Justice Antonin Scalia. One of those cases included the landmark case of New York State Rifle & Pistol Association v. Bruen, wherein Clement represented the petitioners who challenged New York’s law barring ordinary, law-abiding citizens from carrying handguns outside their homes for self-defense. The Supreme Court sided with Clement and his clients, ruling that New York’s law violated the Second Amendment’s guarantee of the right to keep and bear arms.
While Clement hasn’t won all his Supreme Court appeals, as Clement’s former boss — another former solicitor general for the United States, Kenneth Starr — told The Washington Post: “You want him; he is the best advocate of his generation.”
Whether his advocacy succeeds remains to be seen, but in arguing for rehearing in the 11th Circuit, Clement revealed a tripwire Democrats appear oblivious to — namely that if “officers” for purposes of Section 1442(a)(1) does not include “former officers,” then any one of the “Nation’s 2,330 chief local prosecutors, distributed across jurisdictions red and blue,” will have “a green light to make a name for themselves by filing ‘day-after’ indictments.”
It may be Trump now, but tomorrow it could be Biden and his cabinet. And such “open season” will not be limited to the executive branch, Clement also highlights, because the federal removal statutes that authorize members of the House, Senate, and judiciary to remove a case to federal court all use the identical term “officers.” Thus, “any disgruntled constituent or litigant could sue any outgoing congressperson or federal judge” in state court, following Willis’ script.
There is a delicious irony: The same arguments Willis made before the 11th Circuit could be applied to a future criminal case against Willis or her legal team. With recent reporting alleging Willis paid her lover, Nathan Wade, to help with the get-Trump prosecution — including paying Wade to fly to D.C. to speak with the Biden administration about the case — it isn’t hard to imagine a red-county prosecutor crafting a RICO conspiracy charge similar to the one Willis dropped on Trump and his associates.
And while Congress could step in, after watching Democrats weaponize the government to get Trump and any Republicans who dared stand with him, why would they?
