The Washington PostDemocracy Dies in Darkness

Opinion Mark Meadows paints himself into a corner

Mark Meadows speaks to the press in Statuary Hall on Capitol Hill on Aug. 22, 2020. (Salwan Georges/The Washington Post)
5 min

Former White House chief of staff Mark Meadows, a key figure in the prosecution of four-time-indicted former president Donald Trump, apparently is desperate to get his criminal case out of Georgia state court. He is so desperate, he waived his Fifth Amendment rights, testified at length in federal court at Monday’s hearing on removal of his case and seemed to leave himself wide open to prosecution for his involvement in the phony-elector scheme.

The first question is why he so fears state court. After all, whether in federal or state court, he will be tried under Georgia state law, Fulton County District Attorney Fani T. Willis (D) will lead the prosecution, and any conviction would not be subject to a federal pardon. Moreover, if he wants to claim immunity from prosecution under the Constitution’s supremacy clause, he can make that argument in either court. And frankly, if he wants his best shot at a favorable jury, he’d probably prefer to be in state court, where lawyers generally do the jury voir dire, rather than federal court, where the judge generally does the questioning.

Several explanations might account for his high-risk decision to testify. First, the jury pool is a bit wider in the Northern District of Georgia, although jurors would still come largely from Fulton County. He might be betting that the chances of finding a pro-MAGA holdout juror are higher in federal court.

More likely, he and his counsel figure that if he can get into federal court under the low bar required for removal (be a federal officer acting “under the color of office” with a “colorable” — i.e., legally plausible — federal defense), he will find a judge more likely to approve his escape hatch: a claim that he is immune from state prosecution under the supremacy clause.

An immunity defense would require him to show that his “conduct [was] authorized by federal law or the Constitution” and that he did no “more than what was necessary and proper” to effectuate his federal duty. And that, as we will discuss in a moment, is problematic when the political/campaign work Meadows engaged in, especially with regard to phony electors, was not authorized by federal law and indeed prohibited under the Hatch Act.

In short, in testifying for several hours and submitting himself to cross-examination, Meadows let on how closely he was involved in Trump’s shenanigans, revealed that he had no reason to doubt then-Attorney General William P. Barr’s assessment that there was no fraud, and made clear that a good deal of what he did was political. Thus, whether he winds up in federal or state court, he has admitted to facts that might well seal his prosecution if the immunity defense fails.

So what did Meadows say under oath? He tried to maintain that all along, he was just doing his job, helping the president ensure there was no election fraud. Aside from the utter gall (asking to “find” just enough votes to swing the state is demanding fraud, not ensuring against it), he let on that his definition of his duties as chief of staff included purely campaign activities — something he, of course, was barred from doing under the Hatch Act.

Meadows said, “There is a role for the chief of staff to make sure those campaign goals and objectives are implemented at the federal level.” That’s balderdash; the Hatch Act prohibits such activity. If that is what he is hanging his hat on, his chances of removal decline and his shot at meeting the tougher immunity standard seems near-impossible.

Meadows also conceded that he sent a text message to a Georgia election official asking if the state could speed up the ballot signature-matching process if the Trump campaign paid for it. That seems like a purely partisan/campaign communication.

In a tweet, Just Security co-founder Ryan Goodman points to another near-fatal exchange: “He says [the] call he set up with Trump-Raffensperger was Trump hoping to figure out ‘a less-litigious way of resolving’ concerns. Prosecutors: That’s Campaign litigation. Why are you as Chief of Staff directly involved?” There is no real answer to that. Indeed, the infamous call included Trump, Meadows and Trump’s private attorneys, including Cleta Mitchell — not anyone from the Justice Department. That too seems well beyond the duties of the White House chief of staff.

Most damning, Meadows’s direct involvement with the phony electors could not possibly have fallen within any official duties, since selection of the electors, certification of the votes and eventual counting of the electoral votes constitutionally do not include the president. These duties are left to the states and to Congress. Not surprising, Meadows could not explain how that conduct related to any of the president’s duties under Article II. (Moreover, in denying that he helped coordinate the phony-elector scheme, he seemed to contradict other evidence in the form of emails showing that he was involved in coordinating it.)

In sum, Meadows left plenty of breadcrumbs for the prosecution to scoop up, whether in federal or state court, to show that his activities went far beyond any official duties. Moreover, he tied himself to the ongoing scheme to overthrow the election in declaring that he was Trump’s gatekeeper and “would get invited to almost every meeting that the president had.”

It is no wonder that Judge Steve C. Jones seemed highly skeptical of Meadows’s claim that everything he did was part of his official duties. That’s telling, for even if he lets Meadows into federal court, he might well slam the door shut on an immunity defense. Then, Meadows’s testimony would have been for naught. Instead of sparing himself from prosecution, he might have given Willis all the material she needs to get him convicted.