MAGA Goons Vie To Out-Crazy Each Other In Mad Dash To Escape DA Fani Willis

That's some creative lawyering right there.

Aug 23, 2023

Hooboy, we got us a derp off in Georgia! The Fulton County defendants are none too happy about that mean, brown lady in Atlanta trying to boss them around, and they’re running to Mommy to get her to do something about it. And by “Mommy,” we mean the Richard B. Russell Federal Building & United States Courthouse in Atlanta, specifically the docket of Judge Steven Jones.

In one corner, we have local boy David Shafer, a former state senator who signed the fake electoral certificate in 2020. Shafer lost his bid for re-election in 2018 and was then made head of the Georgia GOP. He’s no longer head of the state party, although it’s still paying his legal bills, along with those of his fellow fake electors. But in November, Judge Robert McBurney, who supervised the Special Purpose Grand Jury, ruled that Shafer was too special to share a lawyer with the rest of his cosplay buddies — and not in a good way.

Given the information before the Court about his role in establishing and convening the slate of alternate electors, his communications with other key players in the District Attorney’s investigation, and his role in other post-election efforts to call into question the validity of the official vote count in Georgia, the Court finds that he is substantively differently situated from the other ten clients jointly represented by [attorneys Holly] Pierson and [Kimberly] Debrow. His signed waiver may be identical, but his situation is not. He is not just another alternate elector; his lawyers’ repeated incantation of the ‘lawfulness’ of the 2020 alternate electoral scheme… do not apply to the additional post-election actions in which Shafer engaged that distinguish him from the ten individuals with whom he shares counsel. His fate with the special purpose grand jury (and beyond) is not tethered to the other ten electors in the same manner in which those ten find themselves connected. … A disinterested lawyer would not advise the other ten electors to share counsel with David Shafer. As such, the joint representation must end.

So Pierson took Shafer, and Debrow agreed to represent the other fake electors, most of whom cut a deal to avoid prosecution. Shafer wound up as one of Donald Trump’s 18 co-defendants in the grand jury indictment, charged with eight felonies in connection with making and submitting the fake electoral certificate, and one count of violating Georgia’s RICO act.

Last week when Mark Meadows tried to remove his case to federal court, I speculated that former DOJ lawyer Jeff Clark and Trump himself would do the same. After all, they were both federal employees at the time of the alleged illegal acts. I did not speculate that Shafer would make that play, because that would be BUGFUCK INSANE. This was an inexcusable failure of imagination on my part, since I’ve read all Pierson and Debrow’s special purpose grand jury filings and should have been prepared for just such an eventuality.

Late Monday, Shafer filed a notice of removal to federal court premised on the theory that he is being charged with “conduct that stems directly from his service as a Presidential Elector nominee acting under the authority of the Constitution and the Electoral Count Act and at the direction of the President and other federal officers.”

Which makes complete sense if you ignore a few pesky details. Such as the fact that electors are state officials, not federal employees, as the Electoral Count Act makes very clear. And that the documents in support of Shafer’s motion show a lawyer for the Trump campaign, not the White House, coordinating the fake electors. Also there’s the minor matter that Donald Trump lost and there were no official Republican electors in Georgia in 2020.

Anyhoo, strong submission from Shafer, but he’ll have to get up pretty early to out-crazy Jeff “Oil Spill” Clark!

Clark, for his part, has at least a colorable argument to remove his case to federal court. He was a federal employee, and his support for the conspiracy appears to consist of the “proof of concept letter” he tried to get acting Attorney General Jeffrey Rosen to sign informing Georgia’s legislators that the FBI had discovered outcome-determinative fraud in the state, and thus the politicians should convene and steal Biden’s electoral votes for Trump. There was no fraud, of course, and Rosen told him to get lost. But it’s not crazy to say that Clark qualifies under 28 USC § 1455, which governs criminal removals.

It’s crazy to say that Clark qualifies for civil removal under 28 USC § 1446, so of course that’s exactly what Clark did.

And why would he make such a ludicrous assertion?

Well, filing for civil removal immediately halts all state proceedings, on the theory that lawsuits can wait. But in criminal cases, the state prosecution continues until a federal judge agrees that there is federal jurisdiction.

Clark, who complains bitterly (and correctly) about the conditions in the Atlanta jail, would really prefer that he not have to get arrested like a normal person who breaks the law. So he jujitsued up something he calls “a civil-criminal hybrid action,” and demands to be treated like someone being sued in a civil case. Which, to be clear, he is not.

If we have properly divined the meaning from the goat entrails of his bizarro pleading, he is challenging not just the criminal indictment, but the now-shuttered special purpose grand jury which filed the original report. That is, of course, ridiculous — and anyway, Judge McBurney and multiple other courts have concluded that the special purpose grand jury was a criminal body.

And yet, Clark’s attorneys insist that the special purpose grand jury was a civil instrument, and thus their client is entitled to avail himself of the civil removal statute:

The Fulton County Action took advantage of civil proceedings to augment the powers of an ordinary grand jury in Georgia with the powers of a special purpose grand jury. This voluntary choice by the State requires the State to take the bitter with the sweet, for the State cannot work such a fusion of civil and criminal powers and thereafter deny the impact of using those civil powers as a launchpad for this case. And the bitter for the State here is that its use of that civil launchpad brings with it the automatic stay on state court proceedings pursuant to Section 1446(d), once removal has occurred.

But wait, there’s more! Because Clark filed an emergency petition around lunchtime yesterday demanding that the court issue an order by 5 p.m. — again, yesterday — so that he “would not need to be put the choice of making rushed travel arrangements to fly into Atlanta or instead risking being labeled a fugitive.”

Why, yes, Jeff Clark did wait eight days after the indictment to challenge the surrender requirement, and then dictate to the court that it had five hours to respond. Which it did — although not in the way that he hoped. Instead Judge Jones, who is presiding over all three removal cases, gave DA Fani Willis’s office until 3 p.m. today to respond. Let’s go out on a limb and guess that she will have some thoughts on the brand new field of quasi-civil-criminal-hybrid-chimera law.

Indeed, Shafer and Clark are both worthy contenders, offering up a wild melange of bad legal theories and brazen effrontery, with more than a soupçon of indignation at being treated like a common criminal. But there can be only one, and so the honors must go to Clark, for the sheer chutzpah of his emergency motion. It really is the cherry on top.

Shafer’s crack lawyers are no doubt preparing for a rematch, and we at Wonkette wish them the best of luck in their future endeavors.

Oh, and PS, as Evan pointed out this morning, even if these dinguses get to federal court, they still get tried by DA Willis, under Georgia law, and with no possibility of federal pardon. Except their cases will probably go to trial faster. But not on TV, so there’s that.