I don’t stun easily.
No, I’m definitely not the world’s bravest person – I’ll never get on a rollercoaster, and I’m scared of basically all animals – but my fourteen-plus years as a prosecutor and five-plus years of doing live television have given me a certain unflappability. (Go ahead, just try to flap me; it won’t work.)
All that said: Donald Trump’s decision not to seek removal of his Fulton County indictment from Georgia state court over to federal court did legitimately stun me. I said it straight up last week on the CAFE Insider podcast, as I filled in for everyone’s second-favorite Boss from New Jersey, Preet Bharara: “I can’t imagine why Trump would not make a removal motion… I would be stunned if they don’t make a removal argument.” I should’ve listened to my co-host Joyce Vance, the pride of Tide country, who correctly posited that, “I’m not so sure Donald Trump would prefer to be in front of a federal judge… so he might not want to see his case tried there.” (This, folks, is why Joyce was a presidentially-nominated, Senate-confirmed U.S. Attorney, while I was just a knockaround line AUSA.)
Indeed, it seemed plain to me – and to most legal pundits in the non-Joyce category – that Trump had ample reason to try to get his case removed from state to federal court.
First and most importantly: the jury pool. In state court, the jury would be drawn entirely from Fulton County, where Trump garnered a mere 26.2% of the vote in the 2020 election. (To do the obvious flipside math here, 73.8% of all Fulton County voters cast their ballots against Trump.) But if the case moved to federal court, the jury would come from a broader swath of counties in the Atlanta Division of the Northern District of Georgia, including Cherokee (where Trump got 68.8% in 2020), Cobb (42%), Gwinnett (40.2%), Henry (39.2%), and Douglas (36.8%). Sure, juries are vetted for political bias and instructed to put aside their personal views, but let’s be real here: prosecutors want jurors who don’t like Trump, and Trump wants his own voters in the box.
Trump might have realized other strategic benefits from moving over to federal court. He’d have the notably conservative Eleventh Circuit Court of Appeals keeping watch over federal district court proceedings (though that appeals court has ruled against Trump recently). Trump would have at least a shadow of an argument that the case would be subject to presidential pardon – perhaps even his own, if he wins in 2024 – if it were removed to federal court. And, while Trump can argue in either state or federal court for dismissal of charges based on the Supremacy Clause – which protects federal officials from state prosecution for actions taken in performance of their federal jobs – that seems like an argument that would naturally be better received in federal than state court.
But now that I step back a bit, and with the benefit of hindsight – hey, this thing really is 20/20! – I can see why Trump opted not to seek removal to federal court.
Let’s start with the judges. The state court judge, Scott McAfee – who, somehow, is just 34 years old – is “driven and mild-mannered with conservative credentials,” according to the hometown Atlanta Journal-Constitution. Indeed, Judge McAfee, a former federal and state prosecutor, was a member of the conservative Federalist Society and was nominated to the bench by a Republican governor. Judge McAfee is no ideologue – he has presided thus far in a balanced, impartial manner – but his substantive legal rulings likely have provided some comfort to Trump. For example, the judge rejected the DA’s silly, showboaty request to try all 19 co-defendants together in one mega-trial starting next month. He also took issue with the DA’s rosy prediction that a trial would take only about four months, suggesting that a realistic estimate could be twice as long. And the judge granted an unusual request by two of Trump’s co-defendants to question grand jurors about potential prosecutorial overreach or misconduct.
Over in federal court, Trump’s case would’ve landed with Judge Steve C. Jones, who was nominated to the bench by President Barack Obama. While that fact alone certainly does not mean the Judge would be biased against Trump, rest assured Trump doesn’t see it that way. More to the point, Judge Jones has firmly (and appropriately, in my view) rejected removal motions by Trump’s co-defendants Mark Meadows and Jeffrey Clark.
And that brings us to the second point in favor of Trump’s strategic decision not to seek removal to federal court: he’d probably lose. It’s tough to read Judge Jones’s opinions rejecting the removal motions of Meadows and Clark and still see a realistic path to victory for Trump. Judge Jones found that, no, Meadows was not doing his job as White House Chief of Staff when he tried to steal the election and, no, Jeffrey Clark was not within his scope as a DOJ official when he tried to do the same. All indicators were blinking red for Trump. So, his legal team might reasonably have concluded, why fight the uphill battle? And that fight would have come at a cost. The only realistic way Trump could have made the required showing would have been for Trump himself to take the stand, as Meadows did – disastrously and, ultimately, unsuccessfully.
Finally, Trump’s legal team must be happy with their current procedural posture in state court. Two of his co-defendants, Kenneth Cheseboro and Sidney Powell, will proceed to trial starting later this month. Meanwhile, Trump and his co-defendants can sit back, watch the DA put on its case, and take notes, to their tactical advantage. What’s more, Trump is on the slow track to trial in Georgia state court, and almost certainly will not be tried before the 2024 election. But in federal court, his case might well have been fast-tracked.
There’s one other wrinkle here. Had Trump gotten over to federal court, his trial would not have been televised or live-streamed. But in Georgia state court, it almost certainly will be carried live, on camera. (Judge McAfee has allowed cameras in the courtroom even for routine pre-trial proceedings thus far.) While it has become trendy to declare that Trump is scared and doesn’t want the public to see his trials, his move here suggests the opposite. Maybe Trump just doesn’t care either way, or maybe he sees some political advantage to being the center of round-the-clock media attention – bad publicity being better than no publicity, in a certain worldview. But we can’t say the guy is trying to hide his case from the American public with this move.
Trump’s legal team has already made dozens of strategic decisions, with hundreds more ahead. For the most part, the orientation has been full blast. If there’s a motion to be made, make it, and make it hard. Need to set a trial date? Ask for 2026. Judge has given you some side-eye? Demand she recuse herself. Prosecution seeks a gag order? Oppose it entirely, offering no middle ground. And that’s fine; it’s any defendant’s right to fight his case, no punches pulled. But sometimes, the smarter path is to give it a pass and to roll with the status quo. Trump’s team has done that here by opting not to seek removal to federal court. And, despite how cocksure I originally was that Trump’s team wouldn’t play it this way, I suspect they’ve made the smarter move.
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