Meadows “Goes Nixon” – “If the Chief of Staff Does It It’s Not Illegal”

“If the President does it then it’s not illegal” (Richard Nixon)

Before the day was even halfway over Trump was having a bad day in court. I say that because Mark Meadows appeal in front of a panel of the 11th Circuit Court of Appeals was heard. From the questions the judges from that conservative leaning Circuit asked it seems Meadows, and ultimately Trump will be determined to have NOT been acting in an official capacity. Instead they seem to agree with the original ruling that campaign activities are not official duties. That means when it comes to the charges in the Georgia RICO case will be handled in state rather than federal court. (And elements of the ruling will transfer to the federal Jan. 6 case in DC.) Trump has already been spending a fortune on legal fees so he’s let Meadows take the lead on moving the Georgia RICO case from state to federal court. But he and his lawyers are watching and with great interest!  Let’s take a look and break things down.

Trumps Chief of Staff Mark Meadows is desperate 9(so is Trump) to move his case in Georgia’s Fulton county from state to federal jurisdiction. He got his butt handed to him by the federal judge who heard is argument. In fact, legal pundits said by taking the stand and saying what he said he hurt himself far more than he helped his case. Law and Crime has posted an article about Meadow’s appeal heard this morning by a three-judge panel from the 11th Circuit. I’ll get to that, but want to point out what federal District Court Judge ruled in the first place. Prosecutors maintained that although Chief of Staff Meadows actions for which he was indicted were election related and outside the scope of his official duties. After hearing arguments from both side including as I noted from Meadows himself the ruling that was handed down is what Meadows was appealing this morning:

U.S. District Judge Steve Jones wrote in September that Meadows failed to clear the “quite low” bar for removal, writing that only one of the eight alleged Meadows overt acts outlined in the Fulton County RICO indictment “could have occurred within the scope of Meadows’s federal office.”

Ouch. Meadows is beside himself. Word is that Fulton County D.A. Fani Willis isn’t interested in a plea deal from Meadows. Nope. She wants him sitting right there next to Trump when she has anyone not already convicted or who was allowed to cut a deal on trial. Meadows I suspect never again wants to be in the same zip code as Trump ever again, much less sitting within arm’s reach day after day. After all, on the very day that landed them both in so much legal hot water Trump tried to choke out a freaking Secret Service Special Agent! Meadows sure as hell is no elite federal agent and would need bailiffs to save his bacon if Trump were to give in to temptation.

it’s no wonder Meadows appealed Jones’ ruling and if he loses with the three-judge panel this morning you can bet the farm he’ll file a motion for an en banc hearing. (Fancy legal talk for getting the entire compliment of judges sitting on the 11th Circuit Court of Appeals to hear his case) Well, first we’ll have to see how the three judge panel rules. This is after all a Circuit traditionally stocked with more conservative judges, even though for the most part they are bat-sh*t crazy conservative. This is after all the Appeals Court that took Trump’s favorite judge Aileen “Loose” Cannon to the woodshed not once but twice and wasted not time in doing so. So if Meadows loses this morning, I rather doubt that sitting en banc he’ll wind up getting what he wants.

Anyway, as you know reading tea leaves with SCOTUS is fraught with the potential to misread how they’ll eventually rule. The same is true with Appellate courts although seemingly not to the same degree. From their questions to lawyers for each side their questions sometimes do give some indication on where they stand. Also keep in mind that before hearing an appeal they first obtain and digest (as in have their clerks research everything) the briefs from each side. Lawyers seldom get to simply read their brief or a summary of it. The judges almost always barge right in and start with the questions.

From the linked article there are troubling signs for Meadows. At the heart of it is I think what I alluded to in the title. As all this has unfolded Meadows has conceded that working on re-election matters would be outside the scope of official duties. The linked article speaks of how the 11th Circuit panel homed in on this point:

The 11th Circuit panel’s line of questioning for Terwilliger on Friday was laser-focused on Meadows’ assertions that all of his actions stemmed from his official duties as White House chief of staff, as if Meadows “could do anything” and claim those acts were within the scope of his office.

Meadows and his attorney George Terwilliger have tried to blur the lines, citing a very old statute designed to protect federal officials from prosecution from actions taken under the color of their Office. The ruling being appealed states the evidence presented show seven of the eight actions Meadows is charged with were clearly campaign related and therefore outside the scope of his official duties. In plain language, he said the statute Meadows and his lawyer are using doesn’t apply. However, as the blocked quote above indicates Terwilliger (and therefor Meadows) maintain that anything he did working for Trump was part of his official duties. Anything. The judges this morning didn’t seem to be having any of THAT:

Judge Rosenbaum, referring to Meadows’ cross-examination, remarked, “According to him, it seems like everything is in his official duties, and that just cannot be right.”

However that wasn’t all:

Judge Abudu asked Terwilliger how he could square assertions of limitless duties with Hatch Act prohibitions against “certain political activities of federal employees.”

Terwilliger, “bless his heart” (when southern gals say that in a certain tone of voice it means they think someone’s an idiot) tried to rebound. He claimed that as a matter of law it isn’t clear if the Hatch Act doesn’t even applies to a senior cabinet official like Meadows. Hang on there. Have I missed something? Is being Chief of Staff a Cabinet position. You know, with an agency to run and where the person has to be confirmed by the Senate for the job? Last I knew Presidents simply pick their Chief of Staff and that person goes to work. Yes, a C.O.S. is a very senior person in an administration but NO, they are not Cabinet officials!  Well, the other judge had something to say about that:

Chief Judge Pryor, for his part, expressed skepticism that Congress intended the removal statute to cover former federal officials. Pryor noted that the state of Georgia’s prosecution is not interfering with the Biden administration.

Look, ever since he first planted his fat orange butt in the chair at the Resolute Desk in the Oval Office Trump’s “defense” to every civil and criminal charge has been “A President I am granted immunity for any and every thing I do. (Or have ever done or will do)” Meadows is basically claiming that since he worked for Trump that same immunity applies to him as well. I have cited Nixon because Trump’s line of bull excrement didn’t start with him but rather a long time ago. I don’t want this to get too much longer or turn into one the boring “in the weeds” pieces I’m known for writing. However, I do want to bring up something called the Unitary Executive Theory which if you read blogs like this is a term you’ve heard. If like me you find this type of admittedly dense academic stuff interesting check out the link.

Here all you need to know is that from the beginning there’s been a debate or whether the theory should be “strong” or “weak” in practice. Nixon, with his “if the President does it it’s not illegal” philosophy didn’t just subscribe to the strong version, he fashioned an entire new aspect of it and on steroids. In the years that followed, thanks in large measure to groups like The Federalist Society and think tanks like the Heritage foundation the Nixon view of how sweeping the President’s powers, as well as how “shielded” they were from oversight or prosecution became an article of faith. Barr used the nascent version to protect Bush 41 in his first stint as AG. No doubt, it was how he convinced Trump HE was the guy to come in and protect him and therefore got a second stint in the job.

My point is that Trump didn’t come up with his “Because I was President the law doesn’t apply to me” nonsense. But for years he’s clutched to it like a man clutching to the top of a buoy in the ocean with sharks swimming around waiting for him to get tired and lose his grip. And, as I said Meadows is hoping that he can glom onto this twisted version of “Presidential Immunity” by association.

From the looks of it the judges this morning aren’t inclined to grant Meadows his wish and that has major implications for Trump. Add in Jack Smith forcing SCOTUS’ hand on the issue and I think Meadows is screwed. I’ve sometimes felt confident during my life on how SCOTUS might rule on some big case in the news (and not liking what I thought would happen sometimes) but not so much so as to bet on it. However, at the lower appellate level I can be tempted and this is one of those times.

In other words, Meadows has a date with Fani Willis in Fulton County that he’s going to have to keep.