Acting Assistant U.S. Attorney General Jeffrey Clark speaks next to Deputy U.S. Attorney General Jeffrey Rosen at a news conference on Oct. 21, 2020 (Photo by Yuri Gripas-Pool/Getty Images).
A three-judge panel appointed by Republican and Democratic presidents agreed Thursday that former Trump administration DOJ official Jeffrey Clark cannot remove his Georgia RICO prosecution to federal court, just as the appellate court ruled in the case of Mark Meadows. This time, one of the 11th Circuit judges noted in a concurrence that the removal statute is “not a get-out-of-state-court-free card.”
The relatively brief per curiam ruling from Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, U.S. Circuit Judge Britt Grant, a Donald Trump appointee, and U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, has affirmed and declined to disturb a September 2023 decision against Clark.
In that decision, U.S. District Judge Steve Jones wrote that Clark “failed to carry his burden” that he was “acting under the color of his office at the time of the acts alleged” and, in any event, the grand jury proceeding that led to his indictment had already ended. At the time, ex-Trump chief of staff Meadows’ removal case had not yet been decided by the 11th Circuit.
The panel on Thursday recounted the order of events.
“The district court declined to assume jurisdiction over Clark’s criminal prosecution and denied his request to remove the special purpose grand jury proceeding. Without the benefit of our decision in Georgia v. Meadows, 88 F.4th 1331 (11th Cir. 2023), the district court ruled that Clark was not entitled to removal because he failed to establish a causal connection between his alleged criminal conduct and his former office,” the 11th Circuit said. “It declined to address whether he had a colorable federal defense. And it denied Clark’s request to remove the special purpose grand jury proceeding because, even if the proceeding were removable, Clark failed to establish a basis for removal. It also declined to allow removal because the proceeding had concluded.”
When the court did rule in the Meadows case, it said that the removal statute did not apply to former federal officers.
The 11th Circuit has now reiterated that point again.
“The statute applies only to current officers,” the ruling said. “As a former officer, Clark cannot remove his criminal prosecution under section 1442(a)(1).”
“Clark does not argue that he is a current federal officer. So under Meadows, which we are bound to follow, he is ineligible to seek removal” under the statute, the panel continued.
In addition, the panel concluded Clark’s attempt to remove the grand jury proceeding was moot because that proceeding had already come and gone.
“Regardless of whether the proceeding could have been removed during the investigation, the removability of the proceeding is moot because it no longer presents a ‘live controversy,”” the court said. “Clark identifies no concrete interest in having the ‘case’ heard now by a federal court, nor could he.”
Rosenbaum, in a solo concurrence, went so far as to say that the removal statute Clark cited is “not a get-out-of-state-court-free card for federal officers.”
Even if the statute did cover former federal officers, the judge said, “Clark still could not remove his Georgia prosecution to federal court under that statute”:
The federal-officer removal statute is not a get-out-of-state- court-free card for federal officers. It allows a federal officer to remove his criminal prosecution from state court to federal court only if the action is “for or relating to any act under color of [their] office.” 28 U.S.C. § 1442(a)(1). But none of Clark’s charged conduct falls within the job description of his former positions as a federal officer. So Clark can’t satisfy the removal statute.
Clark’s “problem,” Rosenbaum added, is that the 2020 election subversion crimes Fulton County DA Fani Willis’ (D) office has accused him of committing “bear no connection to either of his positions” at DOJ.
Whether Meadows, or Clark for that matter, can ultimately get a reversal will be up to the U.S. Supreme Court.
As recently as Tuesday, Meadows told SCOTUS that the 11th Circuit’s decision in his case was both “unprecedented” and “egregiously wrong.”
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