Mark Meadows Had The Right To Remain Silent. But Now He Doesn't.

You gotta know when to hold 'em, know when to STFU.

Mark Meadows is a crazy sumbitch. That’s it, that’s the tweet.

Oh, you want more? Fine!

Yesterday, Judge Steve Jones held a hearing in federal court in Georgia regarding the former Trump White House chief of staff’s effort to get the indictment against him in Fulton County moved to the federal Northern District of Georgia. Meadows insists he wasn’t doing the RICO, much less a coup when he tried to steal the state’s 16 electoral votes from Joe Biden and give them to Donald Trump. He was just doing his job, and so he’s entitled to have his case heard by a federal judge under 28 USC § 1442, which allows federal officers sued or charged “in an official or individual capacity for or relating to any act under color of such office” to transfer their cases out of state court.

Once safely ensconced in the bosom of the federal judiciary, he’ll move to dismiss the case under the Supremacy Clause, claiming that the state is trying to criminalize what the federal government has authorized, and then he’ll be home free. In fact, he’s already moved to dismiss, even before Judge Jones decides whether to take the case.

Now, you may wonder how texting Georgia officials to ask if an infusion of campaign cash would help them complete a signature audit by January 6 could possibly be official White House business. And indeed, Fulton County District Attorney Fani Willis pointed out that the Hatch Act explicitly bars the use of federal office to benefit a political campaign, and thus Meadows’s conduct could not possibly fall within the ambit of his official employment. But getting yourself into federal court is a very low bar to clear, requiring only a colorable showing that the conduct was related to official duties.

The star witness at yesterday’s hearing on Meadows’s petition for removal was supposed to Georgia Secretary of State Brad Raffensperger, whom Trump pressured to “find 11,780 votes.” But in fact Meadows himself took the witness stand and stayed there for five hours, a move which was totally unexpected by all legal observers, since it meant waiving his Fifth Amendment rights. And, as (my partner at) the Openings Arguments podcast notes on Twitter, under Georgia law, Meadows seems to have waived the right to plead the Fifth about anything discussed on the witness stand. Here’s a quote from the relevant case:

A defendant in a criminal case who voluntarily testifies in his own behalf, waives completely his privilege under the Fifth Amendment. [Cit.] Furthermore, when a defendant voluntarily takes the stand in his own behalf and testifies as to his guilt or innocence as to a particular offense, `his waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.'

If he doesn’t manage to get this case dismissed, Meadows is going to be tried somewhere under Georgia law. And so it was incredibly risky for him to get up on the witness stand and not only lock himself into this testimony, but potentially waive his Fifth Amendment rights at trial. Clearly, he concluded that this hearing was for all the marbles, and so you’d expect him to be well-prepared for questions about the nexus between his actions to thwart the will of the electorate and his official duties. But you would be wrong! According to reporters inside the courtroom, Meadows stumbled badly in his testimony and potentially perjured himself.

Meadows spent the day trying to rest his keister on a rickety, three-legged stool. The first leg was his insistence that more or less anything he did to help the president was definitionally part of his official duties.

“It was a 24-hour, seven-day-a-week kind of job,” Meadows said under direct examination by his lawyer George Terwilliger III, according to Politico. “It was a very broad responsibility. […] I found myself on defense a lot with things coming at me from a million different directions.”

His theory appears to be that anything the COS does to free up the president to do president stuff — picking up POTUS’s dry cleaning, ensuring that Air Force One is ready to depart, assembling slates of fake electors to steal an election — is part of his official duties. Asked for an example of something which would be outside the scope of his employment, Meadows conceded that giving a speech at a campaign rally might do it, a position derided by prosecutor Donald Wakeford.

“It is limitless. It has no horizon. It never ends,” he scoffed.

The second leg of Meadows's argument is a claim that the president has an obligation to ensure that elections are conducted fairly and legally, and thus Trump, and by extension Meadows, were doing their jobs when they pestered state officials to “find” non-existent fraud. But, as Mike Pence’s former chief of staff Marc Short pointed out on CNN, there were official channels to investigate fraud, such as the FBI and the Cybersecurity and Infrastructure Security Agency. Both of those had investigated the fraud claims and come up empty, which is exactly why Trump excluded them from his efforts to overturn the vote in the swing states.

Lawfare’s Anna Bower, who was in the courtroom, reports that Meadows made one of his more serious gaffes when questioned about an email in which he told the Trump campaign’s Jason Miller, “We just need to have someone coordinating the electors for states.”

Asked who “we” was, he mumbled that he didn’t mean “we the campaign,” he just had a “habit” of using the the first person plural, “left over” from his time in Congress.

When asked by Judge Jones, “Is there a role under Article II of the Constitution for the president in a state election or any election?” Meadows demurred that he didn’t “know enough to opine.”

The last and ricketiest leg was Meadows’s claim that he wasn’t trying to sway the election, he was in fact seeking to “settle” it so that Trump’s attention could be diverted to a peaceful transition of power.

“Having open questions [about the election] continued to be a roadblock for initiating other plans,” Meadows testified, according to the Washington Post, adding later, “I just needed to land the plane.”

How many fake electors does it take to land a plane?

This argument is offensively stupid, not least because Meadows resisted hours of imprecations from White House Counsel Pat Cipollone to persuade Trump to call off the mob as it ransacked the Capitol on January 6. He did everything he possibly could to aim the plane at the seat of government, and even planned for Trump to lead the mob as it marched on Congress.

So, will this stool come crashing down under Meadows’s weight?

Well, Judge Jones has just ordered a briefing by Thursday on whether “a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows's office, [would] be sufficient for federal removal of a criminal prosecution.” In plain English, the judge wants to know if Meadows’s case can be removed if some but not all of the conduct alleged in the indictment falls under the rubric of his office.

That’s a good news/bad news order for Meadows. On the one hand, it means he’s likely to be able to remove his case to federal court because at least some of the conduct alleged falls within the ambit of his federal employment. On the other hand, if only some of the conduct charged is part of his employment, it means the rest of it is not, in which case Meadows is likely to lose his motion to dismiss the case.

Which means he just incinerated his Fifth Amendment rights for nothing.

Ah, well. You pay your money, you take your chances.

[Politico / Washington Post / State of Georgia v. Meadows, Docket via Court Listener]

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