Opposition Brief — Mark Randall Meadows, Petitioner v. Georgia

Supreme Court briefOct 3, 2024

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No. 24-97

IN THE

Supreme Court of the United States

————

MARK RANDALL MEADOWS,

Petitioner,

THE STATE OF GEORGIA,

Respondent.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF IN OPPOSITION

————

F. MCDONALD WAKEFORD

Counsel of Record

FANI T. WILLIS

DAYSHA D. YOUNG

ALEX BERNICK

GRANT HAAKILAN ROOD

JOHN WILLIAM WOOTEN

OFFICE OF THE

DISTRICT ATTORNEY FOR THE

ATLANTA JUDICIAL CIRCUIT

136 Pryor St. SW

Third Floor

Atlanta, GA 30303

(404) 612-4981

fmcdonald.wakeford@

fultoncountyga.gov

Counsel for Respondent

October 3, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Whether the Eleventh Circuit’s interpretation

that the ordinary meaning of “officer” in 28 U.S.C.

§ 1441(a)(1) means “current officer,” the first instance

of any court confronting the issue, requires immediate

review.

2. Whether the Eleventh Circuit erred in implementing a test identical to the test applied in its sister

circuits in order to determine whether Petitioner was

entitled to removal under § 1442(a)(1).

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED................................

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

THE PETITION SHOULD BE DENIED ...........

II.

Being The First Instance That Any Court

Has Examined This Issue, The Eleventh

Circuit’s Interpretation of 28 U.S.C.

§ 1442(a)(1) Correctly Relies Upon The

Ordinary Meaning of Its Terms And Does

Not Warrant Immediate Review ..............

A. Independent Evaluation of the Issue

by Additional Courts Is Warranted ....

B. The Eleventh Circuit’s Interpretation

of The Statute Was Correct, and

Petitioner’s Critiques Fail to Answer

It ...........................................................

The Eleventh Circuit Did Not Implicate

Any Circuit Split When It Applied Its

Own Precedent To Find That Petitioner

Is Not Entitled To Removal ......................

A. The Opinion’s Reliance Upon Caver v.

Cent. Ala. Elec. Coop., Which Petitioner

Ignores, Demonstrates Plainly That

The Eleventh Circuit Has Applied The

Same Standard As Its Sister Circuits ....

(iii)

TABLE OF CONTENTS—Continued

Page

B. The Decision Below Correctly Concluded That Petitioner’s Culpable Act

Was Unrelated To The Color of His

Office ....................................................

1. The relevant culpable “act” is

Petitioner’s association with the

alleged conspiracy, an analysis

which is not affected by the 2011

amendment to Section 1442(a)(1) ....

2. Petitioner’s federal authority did

not extend to electioneering or

interference with state administration of elections .......................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. Evans,

514 U.S. 1 (1995) .......................................

Arizona v. Manypenny,

451 U.S. 232 (1981) ................................... 18, 19

Box v. Planned Parenthood of Indiana &

Kentucky, Inc.,

587 U.S. 490 (2019) ..................................

California v. Carney,

471 U.S. 386 (1985) ................................... 10-11

Caver v. Cent. Ala. Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017) .... 1, 8, 20-23, 25

DeFiore v. SOC LLC,

85 F.4th 546 (9th Cir. 2023) .....................

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Def.

Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015) ......................

Jefferson County v. Acker,

527 U.S. 423 (1999) ............................ 21, 24, 26-29

Kellogg Brown & Root Srvs. v. United States,

575 U.S. 650 (2015) ...................................

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) ....................

Maslenjak v. United States,

582 U.S. 335 (2017) ....................................

McCright v. State,

336 S.E.2d 361 (Ga. Ct. App. 1985)..........

TABLE OF AUTHORITIES—Continued

Page(s)

Mesa v. California,

489 U.S. 121 (1989)..................................... 2, 12, 19

Minnesota by Ellison v. Am. Petroleum Inst.,

63 F.4th 703 (8th Cir. 2023) .............. 22, 24, 25

Niz-Chavez v. Garland,

593 U.S. 155 (2021) ...................................

Nordahl v. State,

829 S.E.2d 99 (Ga. 2019) ..........................

Ohio St. Chiropractic Ass’n v.

Humana Health Plan Inc.,

647 F. Appx. 619 (6th Cir. 2016) .............

Omnipol, A.S. v. Multinational

Def. Servs., LLC,

32 F.4th 1298 (11th Cir. 2022) ................

People v. Trump,

683 F. Supp. 3d 334 (S.D.N.Y. 2023)........

Russello v. United States,

464 U.S. 16 (1983) .....................................

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .....................................

Thomas v. State,

451 S.E.2d 516 (Ga. Ct. App. 1994)..........

Trump v. United States,

144 S. Ct. 2312 (2024) ............................... 13, 19

United States v. Papagno,

639 F.3d 1093, (D.C. Cir. 2011) ................

United States v. Pate,

84 F.4th 1196 (11th Cir. 2023) .............. 7, 14-17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .....................................

Watson v. Phillip Morris Cos.,

551 U.S. 142 (2007) ...................................

Willingham v. Morgan,

395 U.S. 402 (1969) ............................... 2, 18, 19

CONSTITUTION

U.S. Const. art. II, § 3 ..................................

STATUTES

5 U.S.C. § 7323(a)(1).....................................

28 U.S.C. § 1442 ...................... 9, 12, 15-19, 25, 27

28 U.S.C. § 1442(a)(l) ........ 2, 4, 7-9, 12, 14-16, 18,

21-23, 27

28 U.S.C. § 1442(b) ....................................... 15, 16

28 U.S.C. § 1455 ...........................................

28 U.S.C. § 1455(b)(5)...................................

28 U.S.C. § 2679(d)(1) .........................................

Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 632,

633 .............................................................

Removal Clarification Act of 2011, Pub. L.

No. 112-51, 125 Stat. 545 ......... 21, 23, 24, 27, 28

O.C.G.A. § 16-14-4(b) ...................................

O.C.G.A. § 16-14-4(c) ...................................

viii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

U.S. Sup. Ct. R. 10........................................

COURT FILINGS

Georgia v. Meadows, Case No. A25A0400

(Ga. Ct. App. Sept. 23, 2024) ......................

Order on Defendants’ Special Demurrers,

Georgia v. Trump, Case No. 23SC188947

(Fulton Super. Ct. March 13, 2024) .........

President Trump’s Updated Notice Regarding

Removal of His Prosecution to Federal

Court, Georgia v. Trump, Case No.

23SC188947 (Fulton Super. Ct Sept. 28,

2023) ..........................................................

OTHER AUTHORITIES

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ................................. 15, 18

H.R. Rep. 112-17, 2011 U.S.C.C.A.N. 420 ....

INTRODUCTION

Petitioner’s arguments alternatively miscast the

nature of the decision below or entirely omit relevant

precedent that would undermine his case. First, Petitioner

mischaracterizes the Eleventh Circuit’s reading of the

federal removal statute’s ordinary meaning as somehow

flouting two centuries of precedent, despite the acknowledged fact that no court has ever actually confronted

the issue. Although no other circuit court has had the

opportunity to evaluate the Eleventh Circuit’s reasoning

or to conduct their own analysis of the question,

Petitioner insists that review must occur immediately.

In so doing, he overstates the urgency of purely

unrealized concerns, claiming that it is “better” that

this Court intervene without the benefit of the insights

further percolation would yield. The opinion below

applied long-established principles of statutory

interpretation to arrive at its holding, and review is

neither necessary nor urgent.

Second, Petitioner entirely omits relevant precedent

in order to suggest that the Eleventh Circuit somehow

“deepened a lopsided circuit split” by applying a test

considered by sister circuits to be identical to their

own. Despite its citation by both the opinion below and

the cases upon which he relies in his petition, Petitioner

pointedly ignores Caver v. Ala. Cent. Elec. Coop., 845

F.3d 1135 (11th Cir. 2017), a case which plainly demonstrates that the Eleventh Circuit remains firmly in

sync with its sister circuits. Once Caver is acknowledged,

no circuit split is implicated, and Petitioner’s actual

complaints spring merely from the result rather than

the standard employed to reach it. Neither of the

issues Petitioner presents require review by this Court,

and his petition should be denied.

STATEMENT OF THE CASE

The federal officer removal statute allows officers of

the United States to transfer cases involving their

official conduct from state to federal courts. 28 U.S.C.

§ 1442 (a)(1) authorizes federal courts to take jurisdiction over “a criminal prosecution that is commenced in

a State court . . . against . . . any officer (or any person

acting under that officer) of the United States . . . for

or relating to any act under color of such office.”

Congress enacted the original form of the statute to

protect federal revenue agents who collected tariffs

against state officials. 4 Stat. 632, 633 § 3 (Mar. 2,

1833); See also Watson v. Phillip Morris Cos., 551 U.S.

442, 148-49 (2007). The statute was designed to protect

the federal government from the “interference with its

operations that would ensue were a State able, for

example, to arrest and bring to trial in a State court . . .

officers . . . of the Federal Government acting within

the scope of their authority.” Id. at 150 (punctuation

omitted) (quoting Willingham v. Morgan, 395 U.S. 402,

406 (1969)).

When a defendant seeks removal under Section

1442(a)(1), the district court must evaluate whether

the defendant satisfies three requirements: (1) that

they are a federal agency, a federal officer, or a person

“acting under” a federal officer; (2) that the action

against them is “for or relating to any act under color

of such office”; and (3) that they have a “colorable”

federal defense, Mesa v. California, 489 U.S. 121, 129,

139 (1989).

On August 14, 2023, a Fulton County grand jury

returned an indictment alleging that a group of

individuals—including Petitioner Mark Meadows, who

served under former President Donald Trump as his

Chief of Staff—participated in a conspiracy to unlawfully

change the outcome of the 2020 presidential election

in then-President Trump’s favor. Pet.App. 2-4, 49-50.

Petitioner, co-Defendant Trump, and seventeen others

were charged with conspiracy to violate Georgia’s

Racketeer Influenced and Corrupt Organizations Act

(“RICO”). Pet.App. 2; see O.C.G.A. § 16-14-4(b), (c).

Petitioner is alleged to have joined the conspiracy and

committed overt acts to further it, “including but not

limited to” eight specified within the indictment:

•

attending a meeting with Trump and Michigan

officials about election fraud in Michigan, during

which Trump “made false statements concerning

[election] fraud” and in which Trump’s personal

attorney, co-Defendant Rudy Giuliani, also

participated (Act 5);

•

text messaging Scott Perry, a United States

Representative from Pennsylvania, asking “Can

you send me the number for the speaker and the

leader of PA Legislature. POTUS wants to chat

with them.” (Act 6);

•

meeting with Pennsylvania legislators about

the possibility of holding an election-related

special session of the Pennsylvania General

Assembly (Act 9);

•

requesting that Trump political aide John

McEntee prepare a memorandum “outlining a

strategy for disrupting and delaying the joint

session of Congress on January 6” by having

former Vice President Mike Pence “count only

half of the electoral votes from certain states”

(Act 19);

•

traveling to Cobb County, Georgia, to attempt

to observe a nonpublic signature match audit

(Act 92);

•

arranging a phone call between Trump and the

Georgia Secretary of State’s Chief Investigator

regarding the Georgia presidential election results,

during which Trump “falsely stated” that he had

won the presidential election “by hundreds of

thousands of votes” and told Watson that “when

the right answer comes out you’ll be praised.”

(Act 93);

•

text messaging an employee of the Georgia

Secretary of State to ask, “Is there a way to

speed up Fulton county signature verification in

order to have results before Jan 6 if the trump

campaign assist financially.” (Act 96); and

•

soliciting Georgia Secretary of State Brad

Raffensperger to violate his oath of office by

altering the certified returns for presidential

electors (Act 112).

Pet.App. 2-4, 63-64; see CA11.App. 15-112. Based on

his and co-Defendant Trump’s solicitation of Secretary

Raffensperger as described in Act 112, Petitioner was

also charged in Count 28 with Solicitation of Violation

of Oath by Public Officer. Pet.App. 2, 50; CA11.App.

101. 1

Petitioner filed a Notice of Removal pursuant to

28 U.S.C. §§ 1442(a)(1) & 1455. Pet.App. 4. The district

court ordered an evidentiary hearing, much of which

consisted of the direct and cross-examination of Petitioner

The Superior Court of Fulton County later granted a demurrer

dismissing Count 28. Order on Defendants’ Special Demurrers,

Georgia v. Trump, Case No. 23SC188947 (Fulton Super. Ct.,

March 13, 2024). The State of Georgia appealed, and the appeal

was docketed in the Georgia Court of Appeals on September 23,

2024, where it remains pending. Notice of Docketing, Georgia v.

Meadows, Case No. A25A0400 (Ga. Ct. App., Sept. 23, 2024)

himself. Pet.App. 4-7. Petitioner described himself as

the senior official “in charge of the Executive Office of

the President” with a broad and almost limitless

portfolio of duties. Pet.App. 67. At the same time,

Petitioner acknowledged that his role of Chief of Staff

did not exempt him from the requirements of the

Hatch Act, which he knew to prohibit a federal

employee from using “his official authority or influence

for the purpose of affecting the result of an election.”

Pet.App. 5, 68-69; see also 5 U.S.C. § 7323(a)(1). Petitioner

conceded that working on behalf of a political campaign,

specifically the Trump Election Campaign, would be

outside the scope of his federal office. Pet.App. 75;

CA11.App. 484 (“[W]orking for the campaign, if I were

working for the campaign, that would not be my role

as Chief of Staff.”).

Despite this, Petitioner repeatedly admitted to

engaging in activities on behalf of the Trump Campaign.

For example, after first denying he played “any role” in

coordinating the creation of slates of fraudulent

electors throughout the country, Petitioner admitted

on cross-examination that he had directed a campaign

official to do precisely that. CA11.App. 514-17 (email

from Petitioner to campaign official: “[w]e just need to

have someone coordinating the electors for the states”;

forwarding strategic memo from co-Defendant Kenneth

Chesebro). When asked why he did so, Petitioner

responded that if he did not, “I knew I would get yelled

at.” CA11.App. 519. Petitioner also failed to outline any

coherent limits to his responsibilities or authority, or

to identify any basis for his or Trump’s involvement in

the states’ administration of elections. CA11.App. 510-11.

During his testimony, Petitioner attempted to relate

his authority to each of the alleged overt acts. Despite

admitting that he sent the text message described in

Act 96 (asking whether financial assistance from the

Trump Campaign could “speed up” a signature audit),

Petitioner claimed he was not speaking on behalf of

the campaign and that the text did not constitute an

offer. CA11.App. 463-69. He later admitted that the

federal government had no authority over the audit

and that he did not have authority to provide any

federal funds for it. CA11.App. 464. Petitioner

admitted to “setting up” and participating in the call

to Raffensperger, 2 which he acknowledged included

only the Trump Campaign’s attorneys, and during

which he personally agreed with allegations of fraud

and said that he hoped that “we” could “find a way

forward that’s less litigious.” CA11.App. 468-70, 47879, 581. He admitted that he went to the signature

audit in Cobb County as outlined in Act 93 on his own

initiative, and that the meeting with Michigan legislators

(Act 5) concerned Trump’s “personal interest in the

outcome of the election in Michigan.” CA11.App. 435,

447-48. He also denied committing or participating in

Acts 9 or 19, and he testified that he regularly collected

phone numbers for the President as alleged in Act 6.

CA11.App. 418-22, 437.

The district court issued an order declining jurisdiction and remanding Petitioner’s criminal prosecution

to Fulton County Superior Court, concluding that he

had not met his burden of establishing that the actions

he “took as a participant in the alleged enterprise (the

charged conduct) were related to his federal role as

White House Chief of Staff.” Pet.App. 75. The district

court determined that Act 6 “arguably” related to

Petitioner’s federal duties and credited Petitioner’s

Raffensperger also testified and indicated that he understood

the call to be campaign-related because there were Trump

Campaign lawyers on the call. CA11.App. 581.

denials regarding Acts 9 and 19. Pet.App. 75-76, 76

n.14. However, it found that the evidence “overwhelmingly” suggested that Petitioner “was not acting in the

scope of executive branch duties” as part of the remaining

activities alleged as overt acts, each of which constituted

either unauthorized election interference or electioneering on behalf of the Trump Campaign. Pet.App. 7683. Because Petitioner was charged with conspiracy,

an inchoate crime, and because of the culpability

requirements of Georgia’s RICO statute, the district

court looked to the “gravamen” or “heart” of the

charges against Petitioner and concluded that his

association with the conspiracy was unrelated to his

duties as Chief of Staff. Pet.App. 61-64, 75, 82-83.

Petitioner appealed, and the Eleventh Circuit ordered

supplemental briefing on whether 28 U.S.C. § 1442(a)(1)

applies to former federal officers in light of their

decision in United States v. Pate, 84 F.4th 1196 (11th

Cir. 2023) (en banc). Petitioner argued that it did, also

insisting that the district court had erred in refusing

to accept Petitioner’s boundless explanation of his own

authority wherein he personally embodied “federal

operations” and his duties were “at least coextensive

with those of the President.” Pet.App. 25-26.

In an opinion authored by Chief Judge William

Pryor, the Eleventh Circuit affirmed the district court’s

order of remand. First, applying Pate and relying upon

textual, historical, and policy rationales, the opinion

concluded that Section 1442(a)(1) did not apply to former

federal officers. Pet.App. 10-21. Observing that no court

had ever confronted the issue, the opinion noted that

the result was required by the ordinary meaning of the

term “officer” within the statute. Pet.App. 10, 17-18.

Second, the opinion held that Petitioner had failed to

demonstrate “that the conduct underlying the criminal

indictment relates to his official duties.” Pet.App. 21.

The panel agreed with the district court’s assessment

of the evidence, and that the “core” of the charges

against Petitioner bore no relation to his federal

authority. Pet.App. 21-34. In its estimation, several of

the overt acts were either “self-evidently campaignrelated” or had no plausible explanation aside from

“interference with state election procedures.” Pet.App.

32-34. The opinion refused to “rubber stamp” Petitioner’s

description of his own “unfettered discretion” or to

“abdicate any analysis of the limits of his authority” as

Petitioner demanded. Pet.App. 26. In a concurring

opinion, Judge Robin S. Rosenbaum expressed concern

about the potential ramifications of Section 1442(a)(1)’s

ordinary meaning and called upon Congress to clarify

the text of the statute. Pet.App. 35-46.

After the Eleventh Circuit declined Petitioner’s request

for en banc review, with no judge requesting that the

Court be polled on the matter, Pet.App. 47, Petitioner

petitioned this Court for a writ of certiorari.

THE PETITION SHOULD BE DENIED

This Court should deny review of the Petition for two

reasons. First, the Eleventh Circuit is the first court to

consider whether 28 U.S.C. § 1442(a)(1) should apply

to former officials. As no other circuit court has had the

opportunity to examine the question, additional percolation is required before the issue is ripe for review.

Additionally, the decision below correctly interpreted

the language of Section 1442(a)(1) according to its

ordinary meaning using long-established principles of

statutory interpretation. Second, the opinion below did

not implicate any circuit split when it directly relied

upon Caver v. Cent. Ala. Elec. Coop., a case which the

petition omits, to hold that Petitioner was not entitled

to removal. Citing Caver, the opinion implemented the

very test which Petitioner insists is correct. Under that

test, the Eleventh Circuit appropriately declined to

authorize removal, as Petitioner’s culpable act was not

related to his federal office.

I. Being The First Instance That Any Court

Has Examined This Issue, The Eleventh

Circuit’s Interpretation of 28 U.S.C.

§ 1442(a)(1) Correctly Relies Upon The

Ordinary Meaning of Its Terms And Does

Not Warrant Immediate Review

A. Independent Evaluation of the Issue by

Additional Courts Is Warranted

The petition focuses largely on the novelty of the

jurisdictional question below and overstates the degree to

which the decision conflicts with any considered or

settled point of law. In his opinion, Chief Judge Pryor

acknowledged that no court had ever ruled that former

officers are excluded from removal under Section 1442,

but that is because no court has ever considered the

issue at all. When considering removal cases, past

decisions “drove by” the question, providing cursory

references to an officer’s status as either active or

former, if their status was mentioned at all. Pet.App.

17-18. These are precisely the sort of jurisdictional

rulings that this Court has refused to afford precedential value. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 91 (1998) (“We have often said that

drive-by jurisdictional rulings of this sort … have no

precedential effect.”). As Chief Judge Pryor observed,

the only court to even acknowledge the question—

which was not briefed—brushed past it in two sentences.

See Pet.App. 18 (citing People v. Trump, 683 F. Supp.

3d 334, 344 (S.D.N.Y. 2023)). Certainly, no other circuit

has ever analyzed the ordinary meaning of “officer” in the

context of Section 1442(a)(1). So while Petitioner decries

the outcome below as novel, the decision would have

been novel even if he had prevailed, simply because no

other court had ever actually engaged with the issue.

Its novelty lies not in its outcome but in its inquiry.

That novelty weighs against consideration of

Petitioner’s arguments in this Court. Certainly, there

can be no suggestion of a circuit split on the issue, in

the sense that no other circuit has yet examined the

question, and the decision is not in disagreement with

any other authority because no other court has had the

opportunity to weigh in. This Court has in many cases

“recognized that when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions

from, state and federal appellate courts may yield a

better informed and more enduring final pronouncement by this Court.” Arizona v. Evans, 514 U.S. 1, 23

n.1 (1995) (Ginsburg, J., dissenting). As Justice Gorsuch

has explained, that is because “the crucible of adversarial

testing on which we usually depend, along with the

experience of our thoughtful colleagues on the district

and circuit benches, could yield insights (or reveal

pitfalls) we cannot muster guided only by our own

lights.” Maslenjak v. United States, 582 U.S. 335, 354

(2017) (Gorsuch, J., concurring in part and concurring

in the judgment); accord Box v. Planned Parenthood of

Indiana & Kentucky, Inc., 587 U.S. 490, 493 (2019) (“We

follow our ordinary practice of denying petitions

insofar as they raise legal issues that have not been

considered by additional Courts of Appeals.”). This

would remain true even if even if Petitioner were

correct that the Eleventh Circuit’s decision represented a

discordant holding under a settled question, rather

than the first instance of an issue receiving any

analysis. California v. Carney, 471 U.S. 386, 400 n.11

(1985) (Stevens, J., dissenting) (“[W]e do not think that

the Court must act to eradicate disuniformity as soon

as it appears . . . The process of percolation allows a

period of exploratory consideration and experimentation by lower courts before the Supreme Court ends the

process with a nationally binding rule. The Supreme

Court, when it decides a fully percolated issue, has the

benefit of the experience of those lower courts.”) (citation

omitted). However, it is particularly true where, as

here, the issue has never been scrutinized at all.

Additionally, allowing independent evaluation of the

issue by additional courts would reveal that the opinion

below does not warrant the dire sense of urgency

portrayed in the petition. Both Chief Judge Pryor’s

majority opinion and Judge Rosenbaum’s concurring

opinion, which Petitioner cites extensively, acknowledge that state courts are equipped to fairly and

competently address federal defenses. Pet.App. 20-21,

43-44. As will be discussed below, Petitioner attempts

to conflate any instance of a state court handling

federal defenses with the scenario outlined in the

concurrence, where a state court “isn’t capable—for

whatever reason—of quickly, correctly, and fairly

adjudicating federal defenses when a federal officer has

been indicted for carrying out his official federal

responsibilities.” Pet.App.44. As Judge Rosenbaum

observed, that is not the scenario in the present case, 3

Judge Rosenbaum twice emphasizes that this scenario is not

applicable in this case. Pet.App. 35 n.1 (“This hypothetical

scenario does not describe Mark Meadows’s situation” because he

“has not established that the State charged him for or relating to

an act under color of his office,” so removal would remain

unavailable to him regardless); Pet.App. 36 n.3 (“I emphasize

that this concurrence addresses only those state prosecutions of

former federal officers whose charged acts fell within the scope of

their official duties. It does not pertain to state prosecutions of

former federal officers for acting outside the scope of their official

duties and violating state law.”) (emphasis added).

and while Petitioner urges this Court to view the

opinion below as an “invitation” for unscrupulous

prosecutors to pursue unfounded prosecutions against

former federal officials with the aid of complicit state

courts, that scenario remains entirely “hypothetical.”

Pet.App. 35 n.1.

Petitioner assumes that the scenario is inevitable

and sure to be widespread, but his references to the

overheated words of opinion editorials, Pet.32, cannot

suffice to demonstrate that a new era of ubiquitous

prosecution of former federal officials is at hand.

Contrasting the merely possible with the actual, former

officers demonstrably seek removal under Section

1442 extremely rarely. As Chief Judge Pryor noted in

his opinion, Petitioner has not identified any case in

either this Court or in the Eleventh Circuit permitting

removal by a former officer. 4 This Court should reserve

its powers of review to address actual, rather than

purely hypothetical, concerns.

Two additional points counsel against review in this

case. First, Congress is empowered to amend statutes

and choose whether or not to adjust or clarify their

meaning. The Eleventh Circuit analyzed Section

1442(a)(1) by identifying the ordinary meaning of the

words found within it and applying the law as they

found it. See Niz-Chavez v. Garland, 593 U.S. 155, 160

(2021). As Judge Rosenbaum summarized in calling

upon Congress to amend the statute, Congress possesses

Petitioner emphasizes language in Mesa v. California noting

that the parties seeking removal had been federal officers “at the

time of the incidents,” Pet.App. 15 (citing 489 U.S. at 123), but

the opinion below has already addressed this. Both the circuit

court opinion in Mesa and the officers’ petitions to this Court

made clear that they were still federal employees as the case

progressed. Pet.App. 16-17.

the power to enact any necessary changes to the law,

while judges “must faithfully interpret the laws as

they are written.” Petitioner declares that it would be

“far better” that this Court take the matter into its

hands rather than allowing Congress the opportunity

to address the matter if they choose, but it is clear that

it would be “far better” because his preferred venue is

federal court. Pet. 34.

This is related to the second point, which Petitioner

conspicuously does not address, that state courts are

“[]equipped to evaluate federal immunities.” Pet.App.

20. As Chief Judge Pryor observed, Petitioner has

provided no authority indicating otherwise, and this

very case contains compelling evidence to the contrary.

Former President Trump himself affirmatively chose not

to seek removal and to continue his case in Georgia’s

state courts, specifically citing his “well-founded

confidence that this honorable court intends to fully

and completely protect his constitutional right to a fair

trial and guarantee him due process of law throughout

the prosecution of his case.” “President Trump’s

Updated Notice Regarding Removal of His Prosecution

to Federal Court,” Case No. 23SC188947 (Fulton

Super. Ct., Sept. 28, 2023). All of Petitioner’s points

would seem to apply with equal or greater force to

arguments raised by a former President, 5 and yet

Throughout his petition, Petitioner places inordinate reliance

upon Trump v. United States, 144 S. Ct. 2312 (2024), despite the

numerous and significant distinctions between that case and this

one. Trump involved constitutional questions, while this case

hinges on statutory interpretation and the assessment of specific

evidence. Trump involved immunity, while this case involves only

removal. And most significantly, Trump involved the utterly

singular concerns related to the President’s immunity under the

Constitution. The case did not purport to create a broader,

“Executive Branch immunity” or otherwise seek to apply to

Petitioner’s co-Defendant recognized that Georgia

courts were capable and evenhanded venues for him to

present any defenses. This is the starkest illustration

of how Petitioner has overstated the “danger” and

importance of this case.

Accordingly, given that the Eleventh Circuit’s

interpretation of Section 1442(a)(1)’s application to

former officers is the very first examination of the

question to ever occur, and with no other circuits

having had an opportunity to respond or to perform

their own analyses, this Court should deny review.

B. The Eleventh Circuit’s Interpretation

of The Statute Was Correct, and

Petitioner’s Critiques Fail to Answer It

Despite Petitioner’s strident criticism of the decision

below, the Eleventh Circuit applied a standard textual

analysis of the statute that began with its ordinary

meaning and applied several uncontroversial canons

of statutory construction. Beginning “with the language of

the statute itself,” the Eleventh Circuit’s examination

of Section 1442(a)(1) proceeds from the basic observation

that “[t]he ordinary meaning of ‘officer’ does not include

‘former officer,’” and “the ordinary meaning usually

controls.” Pet.App. 10. The opinion then progresses

through a number of established principles of statutory

interpretation, concluding that they reinforced that

ordinary meaning.

The panel’s interpretation of the ordinary meaning

of “officer” followed from the Eleventh Circuit’s recent

en banc decision in United States v. Pate, 84 F.4th 1196

(11th Cir. 2023). Pate established that “officer” does not

officers such as Petitioner, whose role is not prescribed by the

Constitution or even mentioned within it.

include “former officer” by referring to the Dictionary

Act, contemporaneous dictionary entries, and everyday

usage. Id. at 1201-02. While Petitioner colorfully

disparages the reasoning in Chief Judge Pryor’s

opinion below as defying “common sense,” the opinion

relies upon the most basic and common understanding

of the statute’s actual words.

After establishing the ordinary meaning of “officer,”

the opinion examines the whole text of Section 1442

and observes the difference in meaning indicated by

the “silence” of subsection (a)(1) in contrast with

language in subsection (b) that “expressly provides for

the removal of actions commenced against a former

officer.” Pet.App. 11. See Russello v. United States, 464

U.S. 16, 23 (1983) (when Congress includes “particular

language in one section of a statute but omits it in

another section of the same Act, it is generally presumed

that Congress acts intentionally.”). The presumption of

meaning applies “with particular force” to Section

1442 because the disparate provisions are “in close

proximity” to one another and address the same subject

matter. Pet.App. 11. See Antonin Scalia & Bryan A.

Garner, Reading Law § 39, at 252 (2012) (“Statutes in

pari materia are to be interpreted together, as though

they were one law.”). “The explicit reference to former

officers, in an adjacent section that also addresses

removal jurisdiction, suggests that section 1442(a)(1)

does not apply to former officers.” Pet.App. 11. And

because the predecessor to subsection (b) directly crossreferenced the predecessor to subsection (a), the

statute’s history indicates that “Congress in fact

contemplated the relationship between the two removal

provisions” and that the variance in their language

“reflects a deliberate choice.” Pet.App. 15. The text,

structure, and history of Section 1442 thus reinforce

the ordinary meaning of the term “officer” as excluding

“former officers.”

Petitioner’s attacks on this reasoning do not answer

the Eleventh Circuit’s conclusions. At most they merely

point to alternatives, and while the panel’s interpretation

proceeds from the ordinary meaning of “officer” in

Section 1442(a)(1), Petitioner’s proposed alternatives

do not. The only disputation Petitioner provides of the

ordinary meaning of “officer” is to suggest that the

term can sometimes be understood to include “former

officers” in statutes and “ordinary parlance.” Pet.18-19.

This is precisely the argument acknowledged and

rejected by the Eleventh Circuit en banc in Pate and

again by the panel below. See Pet.App. 12. Section 1442

lacks the “compelling textual evidence” or clear “statutory

context” required to arrive at Petitioner’s preferred

interpretation. Petitioner refers to the language of

“the closely related Westfall Act” as an example of how

statutory context can indicate that formers are included

in terms such as “employee” or “officer,” but this reliance

is misplaced: the Westfall Act includes precisely the sort

of explicit temporal language that is not found in

Section 1442(a)(1). See 28 U.S.C. § 2679(d)(1) (“Upon

certification by the Attorney General that the defendant

employee was acting within the scope of his office or

employment at the time of the incident out of which the

claim arose…”) (emphasis added).

Temporal language of this variety can be found

in Section 1442, of course—in subsection (b), not

subsection (a)(1). Regarding this difference, Petitioner

largely repeats the argument he provided below, suggesting that because the subsections address different

legal scenarios, the difference in their language could

support his preferred interpretation of the statute.

Pet.20. However, he does not address the syntactical

analysis Chief Judge Pryor employed in his opinion to

reject that interpretation: subsection (a)(1) does not

require a single condition but “prescribes multiple

independent conditions for removal.” Pet.App. 13. The

first condition—that the party seeking removal be an

“officer of the United States”—is not expanded in scope

beyond its “ordinary meaning” by the second condition

requiring that the suit against him be “for or relating

to” the color of his office. Petitioner does not respond to

this analysis and offers no reason why review is

required to address it.

Similarly, Petitioner points to historical context that

could mitigate in favor of his interpretation of the

statute, but he does not acknowledge the primary

historical point upon which the opinion relies. Pet.1920. Judge Pryor emphasized that Congress had directly

compared the predecessors of the two subsections and

had “in fact contemplated the relationship between the

two removal provisions,” and that earlier versions of

the statute demonstrate “that when Congress intended

to permit removal by former officers, it expressed that

intent with clear language.” Pet.App. 15, 16. Petitioner

responds merely by emphasizing that the subsections

were enacted 40 years apart, another alternative

interpretive approach which the Eleventh Circuit

considered and rejected. Pet.App. 14-15 (“We have

explained that ‘dissimilar language need not always

have been enacted at the same time or found in the

same statute’ to warrant the presumption that

dissimilarities are meaningful when the statutes ‘exist

within the same field of legislation.’ Pate, 84 F.4th at

1202 (internal quotation marks omitted) (citing

United States v. Papagno, 639 F.3d 1093, 1099 n.3 (D.C.

Cir. 2011) (Kavanaugh, J.) (cataloging examples)).”

Petitioner also mischaracterizes the Eleventh Circuit’s

evaluation of the statute’s purpose. He argues that the

decision below was “simply wrong to insist that the

only interest at stake here is ‘[s]hielding officers performing current duties,’” Pet.22, but the Eleventh

Circuit insisted no such thing. As Chief Judge Pryor

emphasized, the Eleventh Circuit’s analysis looked

first to the statute’s actual language because

the “best evidence of [a statute’s] purpose is

the statutory text adopted by both Houses of

Congress and submitted to the President.” W.

Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98

(1991); Scalia & Garner, Reading Law § 2, at

56 (“[T]he purpose must be derived from the

text.”). Purpose “must be defined precisely,

and not in a fashion that smuggles in the

answer to the question before the decisionmaker.” Scalia & Garner, Reading Law § 2, at

56.

Pet.App. 18 (cleaned up). Without attempting to

“smuggle in” an answer, the Eleventh Circuit

evaluated the ordinary meaning of “officer” and

concluded that the statute “shield[ed] officers

performing current duties.” The panel acknowledged

this Court’s interpretation of the Section 1442’s

purpose, which is to protect the federal government

from state interference, Pet.App. 18-19 (citing

Willingham, 395 U.S. at 406), and concluded that their

textual interpretation “effects the statute’s purpose of

protecting the operations of the federal government.” 6

Extensively citing Manypenny and Willingham in her concurrence below, Judge Rosenbaum also emphasized the importance

of the policy counseling against federal involvement in state

criminal prosecutions, even as she outlined her concerns regarding

the ordinary meaning of Section 1442(a)(1). Pet.App. 36 n.3.

Pet.App. 19. And far from insisting that there was only

one “interest at stake,” as Petitioner attempts to

portray the opinion, the Eleventh Circuit emphasized

how its holding attempts to balance federal and state

interests by contemplating the “policy against federal

interference with state criminal proceedings.” Pet.App.

19 (citing Mesa, 489 U.S. at 138) (in turn quoting

Arizona v. Manypenny, 451 U.S. 232, 243 (1981)).

It is Petitioner who seeks to “insist” that only a

single interest is at stake in these proceedings. He

characterizes the Eleventh Circuit’s acknowledgment

of the policy against “federal interference with state

criminal proceedings” as a “thumb on the scale against

removal” leading to a “grudging” interpretation of the

statute that also manages to “defy” this Court’s decision in

Trump, 144 S. Ct. 2312. Pet.21-22. But the Eleventh

Circuit did not create that policy out of whole cloth; it

directly cited the decisions of this Court that acknowledge its importance. The Eleventh Circuit also did not

indicate that the policy controlled its decision; it

merely acknowledged that its holding advanced the

policy. Either this Court’s enunciation of such a

principle matters, or it does not. It cannot be true that

the Eleventh Circuit grossly misconstrued Section

1442 simply by acknowledging “a State’s right to make

and enforce its own criminal laws,” as this Court has

done several times, and observing that its interpretation of the statutory text accords with that principle.

That is Petitioner’s argument, however, because the

only principle he acknowledges is “to have the validity

of the defense of official immunity tried in a federal

court.” Pet. 17 (citing Willingham, 395 U.S. at 407). As

Chief Judge Pryor observed, Petitioner insists that

Section 1442 is “meant to avoid” all state adjudications

of federal immunities. Pet.App. 20. The Eleventh Circuit

acknowledged that adjudicating federal defenses in

federal courts is “one of the most important reasons for

removal,” but there is no indication that the statute is

intended to prevent state review of federal defenses

altogether, Pet.App. 20, and the Eleventh Circuit did

not put its “thumb on the scale” merely by refusing to

serve that purpose at the expense of both the ordinary

meaning of the statutory text and a principle of noninterference in state criminal matters.

Petitioner’s depiction of the opinion below casts it as

a drastic and catastrophic deviation from precedent,

but the result of the decision is that he is to be tried in

state court alongside the former President, who

willingly chose to proceed there. The decision analyzed

a question for the very first time, and Petitioner

overstates the urgency of the matter while also distorting the Eleventh Circuit’s reasoning in his efforts

to argue for immediate review. The issue would benefit

from further percolation among the courts, any

proposed repercussions remain unrealized, and Chief

Judge Pryor’s opinion was correct. This Court should

deny review.

II. The Eleventh Circuit Did Not Implicate

Any Circuit Split When It Applied Its Own

Precedent To Find That Petitioner Is Not

Entitled To Removal

A. The Opinion’s Reliance Upon Caver v.

Cent. Ala. Elec. Coop., Which Petitioner

Ignores, Demonstrates Plainly That

The Eleventh Circuit Has Applied The

Same Standard As Its Sister Circuits

Petitioner mischaracterizes the opinion below and

the current state of the law by ignoring Caver v. Cent.

Ala. Elec. Coop., 845 F.3d 1135, and the Eleventh

Circuit’s reliance upon it in this case. Petitioner argues

that Chief Judge Pryor’s decision applies an outmoded

“causal-nexus test” that was superseded by a 2011

statutory amendment, “deepening a lopsided circuit

split.” Pet.3. In so doing, Petitioner omits any mention

of Caver, in which the Eleventh Circuit acknowledged

the effect of the statutory amendment, despite the

decision below containing several citations to Caver

and numerous references to the broadened language

contained in the amendment. The decision below thus

incorporates the very point that Petitioner insists was

deliberately ignored, enervating his strident claims

that the opinion is somehow “on the wrong side” of the

circuit split he proposes. Instead, the Eleventh Circuit

applied the low, broadened standard for which

Petitioner now advocates, putting it on the “right” side

of any such split. The panel below simply declined to

decide the question in Petitioner’s favor, and with no

circuit split implicated, Petitioner cannot demonstrate

the need for review by this Court.

In Jefferson County v. Acker, this Court advised that

a party seeking federal officer removal under Section

1442(a)(1) had to “show a nexus, a causal connection

between the charged conduct and asserted official

authority.” 527 U.S. 423, 431 (1999). Congress amended

Section 1442(a)(1) in 2011 to “broaden the universe of

acts” that permit removal. H.R. Rep. 112-17, 6, 2011

U.S.C.C.A.N. 420, 425. Removal became authorized for

prosecutions “for or relating to any act under color of

[federal] office,” rather than only prosecutions “for”

acts under color of office. Removal Clarification Act of

2011, Pub. L. No. 112-51, 125 Stat. 545. The Third

Circuit was the first federal appellate court to consider

the impact of this change, concluding that in the wake

of the amendment, it is “sufficient for there to be a

‘connection’ or ‘association’ between the act in question

and the federal office.” In re Commonwealth’s Motion

to Appoint Counsel Against or Directed to Def. Ass’n of

Phila., 790 F.3d 457, 471 (3d Cir. 2015). Two years

later, in Caver, the Eleventh Circuit directly cited In re

Commonwealth’s Motion, both to authorize removal

based upon a mere “connection” or “association” between

a relevant act and federal authority, and to acknowledge Congress’s intention “to broaden the scope of acts

that allow a federal officer to remove a case to federal

court.” 845 F.3d at 1144, 1144 n.8. While Caver applied

the term “causal connection” in addition to “connection”

and “association,” other circuits—in cases cited by

Petitioner to this Court—have recognized that the

“causal connection” standard is “identical to the ‘relates to’

standard described by the other circuits.” Minnesota by

Ellison v. Am. Petroleum Inst., 63 F.4th 703, 715 (8th

Cir. 2023); see also Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286, 292 (5th Cir. 2020) (en banc) (Eleventh

Circuit’s “causal connection” test “cited the amended

‘relating to’ language and essentially implemented a

connection rationale for removal”).

In the present case, Chief Judge Pryor cited Caver

multiple times, including for the precise point of the

removal statute’s broad construction.

Section 1442(a)(1) provides that prosecutions

are removable only when brought against

officers “for or relating to” any act under color

of federal office. Meadows must establish some

“causal connection” or “association” between

his alleged conspiracy-related activity and his

federal office, and the bar for proof is “quite

low.” Caver, 845 F.3d at 1144 (citation and

internal quotation marks omitted).

Pet.App. 31. Chief Judge Pryor also repeatedly

observed that Petitioner’s burden was to persuade the

district court that his prosecution “related to” his

federal office. 7 The panel ultimately agreed with the

district court’s assessment that Petitioner had failed

to show his “association with the alleged conspiracy

was ‘related to any legitimate purpose of the executive

branch.’” Pet.App. 32. The Eleventh Circuit has thus

acknowledged and adapted to the removal statute’s

2011 amendment in concert with its sister circuits, a

move that was begun in Caver and continues in the

opinion in this case.

Petitioner never acknowledges Caver or the reliance

upon it in the opinion below. Indeed, Petitioner conducts

a survey of each federal circuit’s reaction to the 2011

amendment of Section 1442(a)(1), with the sole exception

of the Eleventh Circuit. Pet.App. 29-31. Even though

Caver is explicitly discussed in several of the cases

cited by Petitioner, it is never mentioned in the petition.

With Caver conspicuously absent, Petitioner insists

that Chief Judge Pryor failed to “even acknowledg[e]”

the 2011 amendment and “blithely continued to apply”

See, e.g., Pet.App. 8 (“…the ‘heavy majority’ of the overt acts

were not connected with the performance of Meadows’s official

duties.”); Pet.App. 9 (“…even if Meadows were an ‘officer,’ his

participation in an alleged conspiracy to overturn a presidential

election was not related to his official duties.”); Pet.App. 14

(secondary condition of Section 1442(a)(1) is “that the officer’s act

relate to his federal office”); Pet.App. 21 (“Meadows fails to prove

that the conduct underlying the criminal indictment relates to his

official duties.”); Pet.App. 22 (“[W]e conclude that Meadows’s

association with the alleged conspiracy was not related to his

office of chief of staff.”); Pet.App. 30 (“…activity on behalf of the

Trump reelection campaign was unrelated to Meadows’s federal

duties.”); Pet.App. 34 (“Meadows cannot establish that any of

these acts related to his federal office.”).

Acker’s causal-nexus standard. Pet.25. However, as

noted above, Chief Judge Pryor explicitly cited the

amended statutory language and observed that either

a “‘causal connection’ or ‘association’” would suffice to

authorize removal, while referring repeatedly to Petitioner’s obligation to demonstrate how his prosecution

merely “related to” his office or official duties. Pet.App. 31.

To the extent that Petitioner can demonstrate a

circuit split exists regarding the post-2011 viability of

Acker’s causal-nexus test, this case already sits on the

“correct” side of that split, and there is no cause for a

grant of certiorari. While noting that seven circuits

have explicitly abandoned Acker’s causal-nexus test,

Petitioner observes that three circuits have considered

the broader standard to be “incorporated” into their

existing tests or at least “acknowledged” the amendment’s

broadening of the statute. Pet.29-30. See Minnesota v.

API, 63 F.4th at 715 (Eighth Circuit applying broader

test while continuing to use phrase “causal connection”);

DeFiore v. SOC LLC, 85 F.4th 546, 557 n.6 (9th Cir.

2023) (describing causal-nexus test as “incorporating”

broader post-2011 standard); Ohio St. Chiropractic

Ass’n v. Humana Health Plan Inc., 647 F. Appx. 619,

624 (6th Cir. 2016) (acknowledging broader standard

post-2011). This would appear to leave ten circuits on

the “correct” side of the proposed split, with only the

Second Circuit persisting in viewing the “causalnexus” requirement as unchanged following the 2011

amendment. Pet.App. 30-31.

The Eleventh Circuit obviously does not join the

Second Circuit, however, since the Eleventh Circuit’s

approach in Caver is identical to how the Eighth and

Ninth Circuits have proceeded and goes further than

the Sixth Circuit. The Eighth Circuit even provided

Caver as the example of how it planned to proceed

under a broader “related to” test while continuing to

refer to a “causal connection.” Minnesota v. API, 63

F.4th at 715. Petitioner cites directly to the page of the

Eighth Circuit’s opinion where this point is made,

Pet.30, but pointedly omits any mention of Caver or

the reliance upon it in the opinion below. With Caver

conspicuously absent, Petitioner’s arguments regarding

this case’s position on the “wrong” side of any circuit

split ring hollow.

B. The Decision Below Correctly Concluded

That Petitioner’s Culpable Act Was

Unrelated To The Color of His Office

With the opinion below properly characterized,

Petitioner cannot point to a circuit split implicated by

this case, and his petition becomes merely a dispute

about the result: the Eleventh Circuit applied the very

test he insists was ignored and affirmed the district

court’s order of remand. The panel was correct to do so,

and Petitioner’s arguments on the merits of the

decision fall short. At most, the constitute no more

than suggestions of either erroneous factual findings

or the misapplication of a properly stated rule of law.

U.S. Sup. Ct. R. 10.

1. The relevant culpable “act” is

Petitioner’s association with the

alleged conspiracy, an analysis

which is not affected by the 2011

amendment to Section 1442(a)(1).

Petitioner takes issue with each analytical step

taken by the Eleventh Circuit. The panel first identified

the pertinent “act” under Section 1442, observing that

in a criminal prosecution, the “act” is defined by the

“criminal charge,” just as it is defined by “a ‘claim’

brought against the defendant” in civil contexts.

Pet.App. 23. Because Petitioner is charged with

conspiracy to violate Georgia’s RICO statute, an

inchoate crime, the panel applied established Georgia

law to determine that the “culpable act” for which

Petitioner is being prosecuted is not any individual

“actus reus in furtherance” but “his agreement to join

the conspiracy.” Pet.App. 23. That in turn required the

Eleventh Circuit to look to the “core” of the factual

allegations “to identify whether Meadows’s conduct in

aggregate furthered the alleged enterprise to overturn

the election.” Pet.App. 24. 9 Chief Judge Pryor noted

that this accorded with precedent and the language of

the statute. Pet.App. 24-25. Each of these analytical

steps flowed naturally from the uncontroversial point,

well established in the precedents of the Eleventh

Circuit and other circuits, that a “culpable act” is

defined by a claim or criminal charge against the

defendant. See Pet.App. 23 (citing Fourth, Eighth, and

“Indeed, the state need not prove that Meadows committed

any of the overt acts charged in the indictment, see Nordahl v.

State, 829 S.E.2d 99, 109 (Ga. 2019), or that he engaged in any

overt act at all so long as one of his coconspirators did, see Thomas

v. State, 451 S.E.2d 516, 517 (Ga. Ct. App. 1994). Not only that,

but an overt act need not, in and of itself, be criminal in nature

to support a conspiracy charge. See McCright v. State, 336 S.E.2d

361, 363 (Ga. Ct. App. 1985). In other words, Georgia does not

prosecute Meadows because attending any individual meeting or

sending any specific message was itself illegal; Georgia

prosecutes Meadows because his alleged agreement to join and

his alleged conduct undertaken to further the conspiracy are

illegal.” Pet.App. 23-24.

The Eleventh Circuit’s reference to the “gravamen” of the

charges—a term employed by Justice Scalia in his separate

opinion in Acker and used by the District Court in its order—does

not somehow transform its substantive analysis into a “blithe”

application of the Acker test without any reference to the

broadened, post-2011 language.

Eleventh Circuit cases); Pet.App. 57 n.8 (observing that

“‘[c]laims’ in civil actions correspond to ‘charges’ in

criminal prosecutions” and citing Kellogg Brown &

Root Srvs. v. United States, 575 U.S. 650, 653 (2015)

(“[W]e must decide . . . whether the Wartime

Suspension of Limitations Act applies only to criminal

charges or also to civil claims.” (emphasis added)).

Petitioner insists that this approach is part of the

panel’s application of the Acker causal-nexus test

rendered obsolete by the 2011 statutory amendment,

but that is a mischaracterization of the amendment

and the Eleventh Circuit’s analysis. As explained

above, the 2011 amendment altered the application of

Section 1442(a)(1) by broadening the level of relationship

required between a federal office and a culpable act.

There is no indication that the statutory amendment

altered or affected how courts are to define the relevant

“act” under Section 1442 in the first place, and

Petitioner does not point to any authority supporting

that notion. The opinion below makes clear that the

Eleventh Circuit sought to define the “act” exactly as

other circuits have done, and the panel’s analysis

appropriately hinged upon the specific elements of

Georgia’s RICO statute rather than any sort of broadly

applicable standard with national implications.

Georgia law is clear that Petitioner’s “culpability does

not depend on any discrete act,” so as a result “he

cannot remove by proving that one act was undertaken

in his official capacity.” Pet.App. 24-25. The opinion’s

definition of the “culpable act” thus involves neither

Acker, the 2011 statutory amendment, nor any

accompanying circuit split requiring this Court’s

urgent intervention. And while Petitioner derides the

panel’s analysis as “myopic,” he does not supply any

argument or authority demonstrating that the opinion

below is incorrect either in its association of the

relevant “act” with a specific “claim” or in its

interpretation of clear Georgia precedents regarding

the RICO statute. Petitioner’s argument is simply that

the panel’s analysis of the culpable act seems too

narrow, but his attempt to tie that analysis to Acker

and the 2011 amendment, or any issue requiring

urgent action by this Court, does not succeed.

2. Petitioner’s federal authority did not

extend to electioneering or interference with state administration of

elections

In the next step of its analysis, the Eleventh Circuit

evaluated how Petitioner’s association with the

alleged conspiracy could relate to his federal office.

This step, in Chief Judge Pryor’s words, required that

Petitioner simply “identify a source of positive law for

his assertions of official authority for us to determine

whether his alleged acts were attributable to exercises

of that authority.” Pet.App. 25. Petitioner was unable

to do so. He could point to no Constitutional or

statutory authority describing any role for the President

or his staff in the administration or supervision of

presidential elections. While he attempted to associate

his culpable act to the President’s authority under the

Take Care Clause to “ensure that federal voting laws

are enforced,” Petitioner could provide no indication of

how the Clause’s power was actually related to the

supervision of officials actually empowered to administer

elections: “tellingly, he cites no legal authority for the

proposition that the President’s power extends to

assessing the conduct of state officials.” Pet.App. 28

(punctuation omitted).

Petitioner does not dispute that he was unable to

articulate any coherent source of authority for the

President or his staff to supervise or affect a state’s

administration of elections “on the federal executive’s

own initiative,” but he insists that the Eleventh

Circuit erred nonetheless by failing to “credit his

theory of the case.” The opinion below addressed this

contention, observing that Petitioner’s “theory of the

case” was “that virtually any function of federal

operations falls within the color of office of the chief of

staff,” an interpretation that would require the

Eleventh Circuit to “abdicate any analysis of the limits

of his authority,” “rubber stamp [his] legal opinion,”

and accept a theory of the case that was “not

plausible.” 10 Pet.App. 26. Petitioner insisted that the

panel should regard his testimony as to his own

authority as the final word, without any supporting

sources of positive law, and “accept his assertions at

face value under Acker.” Pet.App. 25-26. Petitioner’s

response at this stage is to simply say that yes, that is

what the courts below should have done, and his

insistence that they somehow “cho[se] between” two

competing factual claims ignores that the panel did

base their conclusions on his testimony. The panel

readily accepted Petitioner’s statements about what

he actually did; what they refused to uncritically

accept was his repeated, conclusory insistence that all

of it related to his office.

Indeed, Petitioner attempts to minimize the impact

that his testimony had on the results of the litigation

below, wherein the district court concluded that the

evidence “overwhelmingly” suggested that his acts

Petitioner denies that he has ever claimed that “the

President’s chief of staff has unfettered authority.” Pet.27 n.4.

However, as Judge Pryor observed and as Petitioner does not

contest, he has previously argued that his official authority is “at

least coextensive with that of the President” and that “he is

federal authority.” Pet.App. 25-26.

were unrelated to his official duties. Pet.App. 83. That

testimony played a central role in the third step of the

Eleventh Circuit’s analysis, where, as discussed above,

it evaluated whether he had “provide[d] sufficient

evidence” that his association with the alleged conspiracy

was “related to any legitimate purpose of the executive

branch.” Pet.App. 32. The Eleventh Circuit agreed with

the district court that, with a single exception, the

evidence—consisting primarily of Petitioner’s own

testimony—indicated that every aspect of Petitioner’s

association with the conspiracy “involved either unauthorized interference with state election procedures or

prohibited campaigning.” Pet.App. 32; see also Pet.App. 83.

The courts below held Petitioner to a permissive

standard and sought to make sense of his assertion of

broad authority and its relationship to his own actions;

he simply had to relate his activities, and his

relationship to the alleged conspiracy, to executive

branch authority.

He could not do so, and his arguments to this

Court suggest that he views any evaluation of his own

theories as a “thumb on the scale” against him.

Petitioner complains that all of the Eleventh Circuit’s

analysis was neither “necessary or appropriate,” that

he has been forced to “win his case before he can have

it removed,” and that “the very fact that the Eleventh

Circuit found itself examining extensive testimony

about the duties of a Chief of Staff and resolving

complex legal questions about the interplay of federal

and state election law” indicates that the case should

have been removed.11 Petitioner thus begins by insisting

No precedent or statute has ever countenanced deference to

a federal officer attempting to define the limits of their own

authority as expansively as Petitioner insists is correct in this

case. Even the Attorney General’s scope-of-office certifications

that his declarations of his own authority, in both

argument and testimony, should have been accepted at

face value, and he concludes by declaring that any

careful scrutiny of those declarations simply demonstrates that he should have prevailed. 12 Put simply,

courts should simply accept his own conclusions as to

the legal questions at issue, but if the courts are

required to engage with them seriously, that too mitigates

in his favor.

As Chief Judge Pryor observed, this is not the case.

Misguidedly, Petitioner emphasizes the importance of

the matter, as it is “hard to imagine a case in which the

need for a federal forum is more pressing” than his

own. But former President Trump did not even attempt

to remove his Georgia case to federal court. Petitioner’s

case implicates no circuit split, applies the appropriate

standard, and turns on specifics of Georgia criminal

law that lack nationwide application or repercussions.

His arguments emphasize his disagreement with the

opinion below, but they do not identify authorities that

actually undermine its conclusions. Petitioner has

failed to identify qualities of the case indicating the

need for Supreme Court review, and his petition

should be denied.

under the Westfall Act, which Congress intended to conclusively

establish whether a federal officer was acting within the scope of

his or her duties, are subject to de novo judicial review upon

challenge. Omnipol, A.S. v. Multinational Def. Servs., LLC, 32

F.4th 1298, 1305 (11th Cir. 2022).

District courts are required to hold evidentiary hearings on

removal in all cases not subject to summary remand. See 28

U.S.C. § 1455(b)(5). They are thus required to exercise their

independent judgment of evidence and testimony in evaluating

petitions for removal.

CONCLUSION

For the foregoing reasons, the petition should be denied.

Respectfully submitted,

F. MCDONALD WAKEFORD

Counsel of Record

FANI T. WILLIS

DAYSHA D. YOUNG

ALEX BERNICK

GRANT HAAKILAN ROOD

JOHN WILLIAM WOOTEN

OFFICE OF THE

DISTRICT ATTORNEY FOR THE

ATLANTA JUDICIAL CIRCUIT

136 Pryor St. SW

Third Floor

Atlanta, GA 30303

(404) 612-4981

fmcdonald.wakeford@

fultoncountyga.gov

Counsel for Respondent

October 3, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.