The State of Georgia v. Mark Randall Meadows

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12958
____________________
THE STATE OF GEORGIA,
Plaintiff-Appellee,
versus
MARK RANDALL MEADOWS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:23-cv-03621-SCJ
____________________
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2 Opinion of the Court 23-12958
Before W ILLIAM P RYOR , Chief Judge, and ROSENBAUM and A BUDU ,
Circuit Judges.
W ILLIAM P RYOR , Chief Judge:
This appeal requires us to decide whether Mark Meadows,
former chief of staff at the White House, may remove his state
criminal prosecution to federal court under the federal-officer re-
moval statute, 28 U.S.C. § 1442(a)(1). After a Fulton County grand
jury indicted Meadows for conspiring to interfere in the 2020 pres-
idential election, Meadows filed a notice to remove the action to
the Northern District of Georgia. The district court held an eviden-
tiary hearing and then remanded because Meadows’s charged con-
duct was not performed under color of his federal office. Because
federal-officer removal under section 1442(a)(1) does not apply to
former federal officers, and even if it did, the events giving rise to
this criminal action were not related to Meadows’s official duties,
we affirm.
I. BACKGROUND
Mark Meadows served as chief of staff at the White House
and assistant to former President Donald Trump when the Novem-
ber 2020 presidential election occurred. Trump lost his bid for
reelection by a margin of 306 to 232 in the Electoral College. In
2023, a Fulton County grand jury indicted Meadows, Trump, and
17 other defendants with crimes related to election interference in
Georgia. The indictment charged Meadows with two state law
crimes: conspiracy in violation of the Georgia Racketeer Influenced
and Corrupt Organizations Act, see G A. C ODE A NN . § 16-14-4(b), (c),
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23-12958 Opinion of the Court 3
and soliciting the violation of oath by a public officer, see id. §§ 16-
4-7, 16-10-1.
The indictment alleged that Meadows joined and commit-
ted eight overt acts in furtherance of an illegal conspiracy to
“change the outcome of the election in favor of Trump.” These
eight acts were as follows:
Act 5: Attending a meeting with Michigan state legis-
lators in which Trump “made false statements con-
cerning [election] fraud.”
Act 6: Sending a text message to United States Repre-
sentative Scott Perry of Pennsylvania that asked,
“Can you send me the number for the speaker and the
leader of PA Legislature. POTUS wants to chat with
them.”
Act 9: Meeting with Pennsylvania state legislators to
discuss holding a special session of the Pennsylvania
General Assembly.
Act 19: Requesting that Trump political aide John
McEntee prepare a memorandum “outlining a strat-
egy for disrupting and delaying the joint session of
Congress on January 6” by having former Vice Presi-
dent Mike Pence “count only half of the electoral
votes from certain states.”
Act 92: Traveling to Cobb County, Georgia, to attempt
to observe a nonpublic signature match audit, at
which point state election officials had to “prevent[]
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4 Opinion of the Court 23-12958
[Meadows] from entering into the space where the
audit was being conducted.”
Act 93: Arranging a telephone call between Trump
and Georgia Secretary of State Chief Investigator
Frances Watson, in 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 96: Sending a text message to an employee of the
Office of the Georgia Secretary of State that asked,
“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 112: Soliciting Georgia Secretary of State Brad
Raffensperger to violate his oath of public office by
“unlawfully altering” “the certified returns for presi-
dential electors,” in violation of Georgia Code sec-
tions 16-4-7 and 16-10-1.
Meadows filed a notice of removal in the district court, see
28 U.S.C. § 1455, based on federal-officer jurisdiction, see id.
§ 1442(a)(1). Meadows argued that the overt acts charged in the in-
dictment related to his official responsibilities as chief of staff and
that he had colorable federal defenses. The district court denied
summary remand and ordered an evidentiary hearing. See id.
§ 1455(b)(5).
At the hearing, Meadows testified about his role as chief of
staff. He explained that his job was a “24/7” responsibility and that
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23-12958 Opinion of the Court 5
his function “was to oversee all the federal operations” and to “be
aware of everything that was going on.” He stated that his respon-
sibilities included meeting with cabinet officials, members of Con-
gress, business leaders, and state officials, including governors.
Meadows was invited to “almost every meeting” involving the
President, as either a principal or an observer. He advised the Pres-
ident on a range of federal issues, from national security to the ag-
ricultural supply chain to prescription drug policy. He also gave po-
litical advice and explained that “everything that [the President]
do[es] from a policy standpoint has a political implication.” Decla-
rations from White House staffers corroborated that Meadows was
“on duty” at all hours even when away from the White House and
that he was responsible for “managing the President’s calendar”
and “arranging meetings, calls, and other discussions with federal,
state, and local officials.”
Meadows testified that he understood that, as chief of staff,
he was bound by the Hatch Act. See 5 U.S.C. § 7323(a)(1) (providing
that a government employee may not “use his official authority or
influence for the purpose of interfering with or affecting the result
of an election”). Meadows understood the Act to prevent him from
“advocat[ing] for a particular candidate” in his official capacity and
from “campaign[ing] actively . . . in [his] official title.”
Finally, Meadows testified about his responsibilities as spe-
cifically related to the overt acts charged in the indictment:
Act 5 (Michigan legislators meeting): Meadows testified
that he was present and that “most of that [meeting]
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6 Opinion of the Court 23-12958
had to do with allegations of potential fraud in Mich-
igan.” He stated that his presence was relevant to his
responsibility to broadly “give advice to the Presi-
dent” and to “be aware of what is consuming the
President’s time.”
Act 6 (Scott Perry text): Meadows acknowledged send-
ing a text message asking for the phone number of
the Pennsylvania House Speaker and testified that he
“regularly” retrieved the phone numbers of state offi-
cials for the President.
Act 9 (Pennsylvania legislators meeting): Meadows testi-
fied that “to the best of [his] recollection,” he was not
at the portion of the meeting discussing the election.
Act 19 (McEntee memorandum): Meadows testified that
he did not ask McEntee for any memorandum on a
strategy to disrupt Congress.
Act 92 (Cobb County visit): Meadows testified that his
observation of the nonpublic signature match audit
in Cobb County was relevant to the “transfer of
power” to the Biden administration, because the
“open question . . . in the President’s mind” about
Georgia voter fraud posed a roadblock to the transi-
tion plan. According to Meadows, the visit “relate[d]
completely” to his official responsibilities because he
needed to “look at the [signature audit] process that
they were going through” to ensure “everything [was]
being done right” to smooth the transition. Meadows
also testified that he went to Cobb County under his
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23-12958 Opinion of the Court 7
own discretion and that “[n]o one directed [him] to
go.”
Act 93 (Watson call): Meadows admitted to arranging
a call between Watson and Trump. He testified that
the call was related to his chief of staff duties because
“the President was interested in all of the election
outcomes [being] . . . accurate as they affected him.”
Act 96 (financial assistance text): Meadows admitted to
sending a text message asking whether it was possible
to speed up Fulton County’s signature verification if
the Trump campaign “assist[ed] financially.” But he
denied that the message was a “financial offer” and
asserted that he “wasn’t speaking on behalf of the
[Trump] campaign.” Instead, Meadows explained
that he had recently learned that a Wisconsin vote re-
count was possible if the Trump campaign paid for it,
so he wanted to understand if a Georgia recount was
also impeded by “financial constraints.” Meadows tes-
tified that he wanted to understand whether the im-
pediment was “a financial resource issue . . . [or] man-
power issue.”
Act 112 (Secretary Raffensperger solicitation): Meadows
admitted to being on the call with Trump, Secretary
Raffensperger, and several attorneys who represented
either Trump personally or the Trump campaign.
Meadows testified that the purpose of the call was to
obtain “signature verification in Fulton County” and
that the President wanted to find “a less litigious way”
of doing so. Meadows asserted that verification was
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8 Opinion of the Court 23-12958
the President’s goal in his official capacity, but he ap-
parently “d[id] not know” whether verification was
also a goal of the Trump campaign.
Georgia presented rebuttal evidence, including evidence
that Meadows was acting on behalf of the Trump campaign during
the call with Secretary Raffensperger. Secretary Raffensperger tes-
tified that he understood Meadows to be asking for a resolution to
Trump v. Kemp, 511 F. Supp. 3d 1325 (N.D. Ga. 2021), and other
Georgia election-challenge lawsuits. He stated, “Those were
Trump campaign lawyers [on the call], so I felt that it was a cam-
paign call.” Georgia also submitted a recording of the call, in which
Meadows requested to sidestep the legal roadblocks to a Georgia
vote recount:
[T]here are allegations where we believe that not
every vote or fair vote and legal vote was . . .
counted . . . . What I’m hopeful for is there some way
that we can find some kind of agreement to look at
this a little bit more fully. You know the president
mentioned Fulton County. . . . [S]o Mr. Secretary, I
was hopeful that, you know, in the spirit of coopera-
tion and compromise is there something that we can
at least have a discussion to look at some of these al-
legations to find a path forward that’s less litigious?
The district court remanded. It explained that sec-
tion 1442(a)(1) requires Meadows to prove that he is a federal of-
ficer, that his charged conduct was performed under color of fed-
eral office, and that he has a “colorable” federal defense. See Caver
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23-12958 Opinion of the Court 9
v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017). The
district court found that Georgia had conceded that Meadows was
an “officer” because he had served as chief of staff “at the time of
the events alleged.” But it found that Meadows had failed to prove
any causal connection between his charged conduct and his office,
because the “gravamen” of Georgia’s case and the “heavy major-
ity” of the overt acts were not connected with the performance of
Meadows’s official duties. The district court did not address
whether Meadows had a colorable federal defense.
After Meadows filed this appeal, see 28 U.S.C. § 1447(d), we
ordered supplemental briefing on whether section 1442(a)(1) ap-
plies to former federal officers, in the light of our decision in United
States v. Pate, 84 F.4th 1196 (11th Cir. 2023) (en banc). Georgia ar-
gued that section 1442(a)(1) applies only to current officers, and
Meadows argued that the statute covers former officers.
II. STANDARD OF REVIEW
We review de novo issues of removal jurisdiction. See Castle-
berry v. Goldome Credit Corp., 408 F.3d 773, 780–81 (11th Cir. 2005).
III. DISCUSSION
The federal-officer removal statute protects an officer of the
United States from having to answer for his official conduct in a
state court. See 28 U.S.C. § 1442(a)(1). Section 1442(a)(1) provides a
right of removal to federal court if a defendant proves that he is a
federal officer, his conduct underlying the suit was performed un-
der color of federal office, and he has a “colorable” federal defense.
Caver, 845 F.3d at 1142; see also Jefferson County v. Acker, 527 U.S. 423,
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10 Opinion of the Court 23-12958
431 (1999). The defendant bears the burden of proof, Leonard v. En-
ter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002), but that bar is
“quite low,” Caver, 845 F.3d at 1144 (citation and internal quotation
marks omitted).
We divide our discussion in two parts. First, we explain that
section 1442(a)(1) does not apply to former officers—so Meadows,
as a former chief of staff, is not a federal “officer” within the mean-
ing of the removal statute. Second, we explain that even if Mead-
ows were an “officer,” his participation in an alleged conspiracy to
overturn a presidential election was not related to his official duties.
A. Section 1442(a)(1) Does Not Apply to Former Federal Officers.
Section 1442(a)(1) provides that “any officer . . . of the
United States” may remove to federal court a criminal prosecution
“for or relating to any act under color of such office.” We have long
understood the statute to afford a current federal officer a federal
forum for the adjudication of his liability or guilt. See Florida v. Co-
hen, 887 F.2d 1451, 1453 (11th Cir. 1989) (first citing Willingham v.
Morgan, 395 U.S. 402, 405 (1969); and then citing Loftin v. Rush, 767
F.2d 800, 804 (11th Cir. 1985)). But the statute does not apply to
former federal officers.
Our interpretation of a statute must begin “with the lan-
guage of the statute itself.” United States v. Ron Pair Enters., 489 U.S.
235, 241 (1989). The text of section 1442(a)(1) applies to only cur-
rent officers. It is silent on the removal of a prosecution com-
menced against a former officer of the United States. The ordinary
meaning of “officer” does not include “former officer.” See Pate, 84
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23-12958 Opinion of the Court 11
F.4th at 1201–02 (determining the meaning of “officer” using dic-
tionary definitions, common understanding, and the Dictionary
Act, 1 U.S.C. § 1). And the ordinary meaning usually controls. See
Bostock v. Clayton County, 140 S. Ct. 1731, 1749 (2020) (“[W]hen the
meaning of the statute’s terms is plain, our job is at an end.”); Niz-
Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021) (“When called on to
resolve a dispute over a statute’s meaning, [a] [c]ourt normally
seeks to afford the law’s terms their ordinary meaning at the time
Congress adopted them.”).
The whole text of section 1442 reinforces the ordinary
meaning of subsection (a)(1). Indeed, in contrast to the silence in
subsection (a)(1), subsection (b) expressly provides for the removal
of actions commenced against a former officer. Section 1442(b)
grants a right of removal to a person “who is, or at the time the al-
leged action accrued was, a civil officer of the United States.” 28
U.S.C. § 1442(b) (emphasis added). This variation in language con-
notes a difference in meaning: 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 inten-
tionally.” Russello v. United States, 464 U.S. 16, 23 (1983) (quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); ac-
cord Freemanville Water Sys., Inc. v. Poarch Band of Creek Indians, 563
F.3d 1205, 1209 (11th Cir. 2009); Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts § 25, at 170 (2012) (“[A]
material variation in terms suggests a variation in meaning.”).
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12 Opinion of the Court 23-12958
The presumption that Congress intentionally omitted any
reference to former officers applies “with particular force” to this
statute. See Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 392
(2015). The provisions containing disparate language are “in close
proximity” to each other, id., and address the same subject matter,
see DIRECTV, Inc. v. Brown, 371 F.3d 814, 817 (11th Cir. 2004); see
also Scalia & Garner, Reading Law § 39, at 252 (“Statutes in pari ma-
teria are to be interpreted together, as though they were one law.”).
“[W]hen Congress uses different language in similar sections, it in-
tends different meanings.” Iraola & CIA, S.A. v. Kimberly-Clark Corp.,
232 F.3d 854, 859 (11th Cir. 2000) (emphasis added) (citing United
States v. Gonzales, 520 U.S. 1, 5 (1997)). 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 for-
mer officers.
To be sure, the term “officer” may sometimes include for-
mer officers. But that interpretation must be supported by “com-
pelling textual evidence,” and the “statutory context [must] make[]
clear” that Congress intended the broader meaning. Pate, 84 F.4th
at 1208–10.
In Pate, we discussed two instances where textual indicia
supported an interpretation of the term “employee” or “officer” as
including formers. Id. First, in Robinson v. Shell Oil Co., the Supreme
Court held that “employee” as used in section 704(a) of Title VII of
the Civil Rights Act of 1964 included former employees because
section 704(a) provided “reinstatement” as a remedy, which could
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23-12958 Opinion of the Court 13
be awarded only to former employees. 519 U.S. 337, 342–43 (1997).
Second, in Davis v. Michigan Department of Treasury, the Supreme
Court held that a statutory reference to “compensation,” 4 U.S.C.
§ 111(a), which necessarily included retirement benefits, implied
coverage of retired employees. 489 U.S. 803, 808–09 (1989).
But in Pate, we held that another statute, 18 U.S.C. § 1114,
lacked any textual indicia to support a “strained” interpretation in-
cluding former officers. 84 F.4th at 1210. The same is true here: no
indicia from text or structure suggest that section 1442(a)(1) covers
former officers.
Meadows argues that the discrepancy between subsec-
tions (a) and (b) can be explained by the provisions’ different “fo-
cuses.” Section 1442(a)(1) focuses on “conduct” and requires an act
relating to the defendant’s federal office, argues Meadows, but sec-
tion 1442(b) requires no such act and removal instead turns on the
defendant’s “status” as an officer when the action accrues. Mead-
ows contends that the explicit reference to former officers in sub-
section (b) reflects the different showings required from a current
and from a former officer—the first must prove that he is an officer,
while the second must prove that he was an officer when the action
accrued. Meadows argues that section 1442(a)(1), in contrast, de-
mands only proof that a person held federal office at the time of the
official act alleged in the suit.
We rejected a similar interpretive approach applied to a sim-
ilar statute in Pate. In Pate, we explained that the secondary condi-
tion in the statute—requiring an officer to be targeted “on account
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14 Opinion of the Court 23-12958
of the performance of official duties”—could not alter the primary
condition—that the officer be a current federal employee. Id. at
1204 (internal quotation marks omitted) (quoting 18 U.S.C.
§ 1114). So too here.
The syntax of section 1442(a) does not suggest that removal
depends on the singular condition that the defendant held office at
the time of his charged conduct. Instead, the statute prescribes mul-
tiple independent conditions for removal: first, the defendant must
be “any officer . . . of the United States,” and second, the suit he
seeks to remove must be “for or relating to any act under color of
such office.” 28 U.S.C. § 1442(a)(1); cf. Pate, 84 F.4th at 1203–05
(statutory provision, covering “any officer or employee of the
United States . . . while such officer or employee is engaged in or
on account of the performance of official duties,” imposed two in-
dependent conditions). Although the secondary condition of sec-
tion 1442(a)(1)—that the officer’s act relate to his federal office—
limits the class of officers eligible for removal, that condition does
not “expand the scope” of the first condition “beyond its ordinary
meaning.” Id. The requirement that a defendant be a current “of-
ficer . . . of the United States” stands as an independent prerequisite
for removal. See 28 U.S.C. § 1442(a)(1).
Meadows also contends that subsections 1442(a)(1) and (b)
cannot be read in conjunction because they were drafted separately
and not combined until 1948 as part of a broader codification. See
62 Stat. 869, 938 (June 25, 1948). The predecessor to sec-
tion 1442(a)(1) was enacted in 1833, see 4 Stat. 632, 633 § 3 (Mar. 2,
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23-12958 Opinion of the Court 15
1833), decades before the predecessor to section 1442(b), see 17
Stat. 44 (Mar. 30, 1872); see also Watson v. Philip Morris Cos., 551 U.S.
142, 148–49 (2007) (recounting statutory history). We disagree.
The disparate origins of these subsections do not rebut the
presumption that the variance in their language is meaningful. 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) (Ka-
vanaugh, J.) (cataloging examples)). Moreover, the statutory his-
tory reveals that Congress in fact contemplated the relationship be-
tween the two removal provisions. Congress expressly cross-refer-
enced the predecessor to subsection (a) in the enacted text of the
predecessor to subsubsection (b). See 17 Stat. 44 (Mar. 30, 1872)
(predecessor to subsection (b), providing that removal shall occur
“in the same manner as now provided for . . . by the provisions of
section three of the act of March second, eighteen hundred and
thirty-three [predecessor to subsection (a)]”). This cross-reference
reinforces the presumption that the variance in language between
the two provisions reflects a deliberate choice. MacLean, 574 U.S.
at 391; Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007)
(“[W]here Congress knows how to say something but chooses not
to, its silence is controlling.” (citation and internal quotation marks
omitted)).
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16 Opinion of the Court 23-12958
Congress has had ample opportunity to modify the discrep-
ancy between subsections (a) and (b), but it has not done so. The
two provisions have been codified in adjacent subsections of the
United States Code since 1948. Congress did not modify the rele-
vant variance during codification or during revisions in 1996, 2011,
or 2013. See Pub. L. No. 104-317, § 206, 110 Stat. 3847, 3850 (Oct.
19, 1996); Pub. L. No. 112-51, § 2, 125 Stat. 545, 545–46 (Nov. 9,
2011); Pub. L. No. 112-239, § 1086, 126 Stat. 1632, 1969–70 (Jan. 2,
2013). Our precedents establish that the decision to preserve grand-
fathered language, despite a “clear ability” to modify it, is signifi-
cant. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1226
(11th Cir. 2001) (citation and internal quotation marks omitted).
Earlier versions of section 1442(a)(1) also evidence that
when Congress intended to permit removal by former officers, it
expressed that intent with clear language. The 1911 codification of
the removal provision used nearly identical language and was also
silent as to former officers. See 36 Stat. 1087, 1097, § 33 (Mar. 3,
1911) (providing for removal of any suit “commenced in any court
of a State against any officer . . . on account of any act done under
color his office.” (emphasis added)). But the same section of the
1911 statute permitted removal by former officers of another class:
Congress used temporal language to allow the removal of “any suit
. . . commenced against any person for [or] on account of anything
done by him while an officer of either House of Congress in the dis-
charge of his official duty.” Id. (emphasis added). The temporal lan-
guage in the congressional-officer provision supports the view that
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23-12958 Opinion of the Court 17
the contrasting silence in the federal-officer provision, within the
same section of the same statute, controls its interpretation.
Meadows identifies no precedent from either the Supreme
Court or this Court permitting removal under section 1442(a)(1) by
a former officer. True, in Mesa v. California, the Supreme Court
used past-tense language to explain that the defendants “were fed-
eral employees at the time of the incidents,” 489 U.S. 121, 123
(1989), but the underlying circuit decision made clear that the de-
fendants remained employees during the state prosecution, see Cali-
fornia v. Mesa, 813 F.2d 960, 961 (9th Cir. 1987) (“[Defendants] are
United States mail carriers charged with violations of state law.”
(emphasis added)); see also Petition for Writ of Certiorari, Mesa, 489
U.S. 121 (No. 87-1206), 1988 WL 1094058, at *2 (“[Defendants] are
employees of the United States Postal Service.” (emphasis added)).
Likewise, in Maryland v. Soper, the defendants “averred that they
were Federal prohibition agents” at the time of removal. 270 U.S.
9, 22 (1926) (adjudicating removal under the predecessor statute to
section 1442(a)). Nor can Meadows identify a precedent from our
Circuit clearly involving a former officer. See Cohen, 887 F.2d at
1454 (apparently current deputy marshal and federal agents sought
removal); Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1427 (11th
Cir. 1996) (unclear whether a federal manufacturing inspection rep-
resentative was still employed when he sought removal).
We acknowledge that, in the 190-year history of the federal-
officer removal statute, no court has ruled that former officers are
excluded from removal. And we acknowledge that former officers
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18 Opinion of the Court 23-12958
have removed actions in other circuits. But in most of these deci-
sions—many of which were summary removals and some of which
were nonprecedential—the courts did not discuss the text of sec-
tion 1442 at all. See, e.g., Eagar v. Drake, 829 F. App’x 878, 881 (10th
Cir. 2020); Arizona v. Elmer, 21 F.3d 331, 334 (9th Cir. 1994); Meros
v. Dimon, No. 2:18-cv-510, 2019 WL 1384390, at *1 (S.D. Ohio Mar.
27, 2019). And in others, the courts did not address the former-of-
ficer question. See, e.g., Guancione v. Guevara, No. 23-cv-01924-JSW,
2023 WL 3819368, at *1 (N.D. Cal. June 5, 2023); Brunson v. Adams,
No. 1:21-CV-00111-JNP-JCB, 2021 WL 5403892, at *3 (D. Utah Oct.
19, 2021). So the decisions permitting former officers to remove
have tended to involve cursory jurisdictional rulings, which we do
not credit. 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.”).
Indeed, we are aware of only one court that has squarely ad-
dressed the former-officer question, in dictum, and it fails to per-
suade us. See New York v. Trump, No. 23 Civ. 3773 (AKH), 2023 WL
4614689, at *5 (S.D.N.Y. July 19, 2023) (stating that former officers
may remove under section 1442(a)(1)). Without considering the
ordinary meaning of the statutory text, that district court reasoned
that section 1442(a)(1) should apply to former officers because it
“would make little sense if this were not the rule, for the very pur-
pose of the Removal Statute is to allow federal courts to adjudicate
challenges to acts done under color of federal authority.” Id. (em-
phasis added). But the “best evidence of that purpose is the statu-
tory text adopted by both Houses of Congress and submitted to the
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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 decision-maker.” Scalia & Garner, Reading Law § 2, at 56.
The Supreme Court has explained that the purpose of fed-
eral-officer removal is 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.” Watson, 551 U.S. at 150 (alterations adopted) (in-
ternal quotation marks omitted) (quoting Willingham, 395 U.S. at
406)). Because the federal government “can act only through its of-
ficers and agents,” if states could unconditionally try federal offic-
ers, “the operations of the general government may at any time be
arrested at the will of one of [the states].” Tennessee v. Davis, 100
U.S. 257, 263 (1879). Shielding officers performing current duties
effects the statute’s purpose of protecting the operations of federal
government. But limiting protections to current officers also re-
spects the balance between state and federal interests, by enforcing
a “‘policy against federal interference with state criminal proceed-
ings.’” Mesa, 489 U.S. at 138 (quoting Arizona v. Manypenny, 451 U.S.
232, 243 (1981)).
The Supreme Court has instructed that federal courts must
“retain[] the highest regard for a State’s right to make and enforce
its own criminal laws.” Manypenny, 451 U.S. at 243. The jurisdiction
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to try state offenses should not “be wrested from [state] courts”
lightly. Colorado v. Symes, 286 U.S. 510, 518 (1932). Interpreting sec-
tion 1442(a)(1) as limited to its ordinary meaning counters “true
state hostility” against the enforcement of unpopular national laws
and limits federal jurisdiction to cases in which the hostility is actu-
ally “directed against federal officers’ efforts to carry out their fed-
erally mandated duties.” Mesa, 489 U.S. at 139; see also Soper, 270
U.S. at 32 (“The constitutional validity of [federal-officer removal]
rests on the right and power of the United States to secure the effi-
cient execution of its laws and to prevent interference . . . by state
prosecutions instituted against federal officers in enforcing such
laws.”). In contrast, a state prosecution of a former officer does not
interfere with ongoing federal functions—case-in-point, no one
suggests that Georgia’s prosecution of Meadows has hindered the
current administration.
Meadows argues that section 1442(a) is intended to provide
a federal forum that is coextensive with federal immunity defenses,
which may be available to former officers. See Willingham, 395 U.S.
at 407 (“[O]ne of the most important reasons for removal is to have
the validity of the defense of official immunity tried in a federal
court.”); cf. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) (absolute
immunity is available to former presidents). Meadows asserts that
section 1442(a) is “meant to avoid” all state adjudications of federal
immunities. We disagree.
Meadows cites no authority suggesting that state courts are
unequipped to evaluate federal immunities. State courts have long
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adjudicated, for example, whether federal officers are entitled to
Supremacy Clause immunity under In re Neagle, 135 U.S. 1 (1890).
See, e.g., People v. Denman, 177 P. 461, 465 (Cal. 1918); State v. Adler,
55 S.W. 851, 853 (Ark. 1900); State v. Waite, 70 N.W. 596, 597–98
(Iowa 1897). And they have continued to do so after the codifica-
tion of the modern federal-officer removal statute in 1948. See, e.g.,
Battle v. State, 258 A.3d 1009, 1021–25 (Md. Ct. Spec. App. 2021);
State v. Deedy, 407 P.3d 164, 188–89 (Haw. 2017); State v. Velky, 821
A.2d 752, 759–60 (Conn. 2003). Likewise, state courts regularly ad-
judicate whether state officers sued for violating federal rights are
entitled to official or qualified immunity. See, e.g., Rustici v. Weide-
meyer, 673 S.W.2d 762, 772 (Mo. 1984); Johnson v. Morris, 453
N.W.2d 31, 37–40 (Minn. 1990); Moody v. Ungerer, 885 P.2d 200,
202–03 (Colo. 1994); Gentile v. Bauder, 718 So. 2d 781, 784–75 (Fla.
1998); Clancy v. McCabe, 805 N.E.2d 484, 493–94 (Mass. 2004); King
v. Betts, 354 S.W.3d 691, 703 (Tenn. 2011).
B. Meadows’s Charged Conduct Was Not Performed Under Color of
Federal Office.
Even if section 1442(a)(1) applied to former officers, we
would still affirm because Meadows fails to prove that the conduct
underlying the criminal indictment relates to his official duties. Sec-
tion 1442(a)(1) permits a federal officer to remove a state prosecu-
tion that is “for or relating to any act under color of [his] office.”
The officer must establish a “causal connection between the
charged conduct and asserted official authority.” Acker, 527 U.S. at
431 (citation and internal quotation marks omitted). So we must
identify the “act” or charged conduct underlying Georgia’s
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22 Opinion of the Court 23-12958
prosecution, the scope of Meadows’s federal office, and the exist-
ence of a causal nexus between Meadows’s conduct and his office.
We proceed in three parts. First, we explain that Meadows’s
culpable “act” was his alleged association with the conspiracy to
overturn the presidential election, as charged in the indictment.
Second, we explain that Meadows’s “color” of office did not include
superintending state election procedures or electioneering on be-
half of the Trump campaign. Third, we conclude that Meadows’s
association with the alleged conspiracy was not related to his office
of chief of staff. Simply put, whatever the precise contours of Mead-
ows’s official authority, that authority did not extend to an alleged
conspiracy to overturn valid election results.
1. The “Act”
We must first define Meadows’s section 1442(a)(1) “act” un-
derlying the RICO charge, for the inchoate crime of conspiracy.
Georgia argues—and the district court ruled—that Meadows’s cul-
pable “act” was his association with the alleged conspiracy. The dis-
trict court determined that evaluating that “act” required looking
to the “heart” of Meadows’s conspiracy-related activity, instead of
individually evaluating each overt act alleged in the indictment. See
Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 234 (4th
Cir. 2022). The district court looked to the “gravamen,” Acker, 527
U.S. at 447 (Scalia, J., concurring in part and dissenting in part), and
“heavy majority of overt acts,” instead of evaluating whether any
particular act related to Meadows’s office. The district court treated
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the overt acts in the indictment as “relevant evidence” of, but not
identical to, the “act” required by section 1442(a)(1).
Meadows, on the other hand, argues that each overt act in
the indictment is an “act” for purposes of federal-officer removal.
He argues that so long as any one of his actions—sending any mes-
sage or participating in any meeting—related to his official duties,
he is entitled to remove. Meadows further argues that the district
court applied an incorrect legal test by looking to the “heart” or
“gravamen” of Georgia’s indictment because it could not do any
weighing at all—it was required to accept Meadows’s interpreta-
tion of “act” at face value.
We agree with Georgia. Looking to the heart of the indict-
ment is consistent with our precedents defining a defendant’s cul-
pable “act” for purposes of federal-officer removal. Our precedents
provide that the “act” anchoring removal must be defined by the
“claim” brought against the defendant, and that federal courts have
jurisdiction only when “one claim cognizable under Section 1442 is
present.” Nadler v. Mann, 951 F.2d 301, 306 n.9 (11th Cir. 1992) (em-
phasis added); see also Sawyer v. Foster Wheeler LLC, 860 F.3d 249,
257 (4th Cir. 2017) (holding that removal is justified if a federal de-
fense applies to any claim); Convent Corp. v. City of North Little Rock,
784 F.3d 479, 483 (8th Cir. 2015) (holding that removal is justified
if one federal claim is present). So an accused’s removal theory
must accord with a claim—a criminal charge—brought against him.
Meadows is charged with the inchoate crime of conspiracy,
that is, “participat[ing] in, directly or indirectly, [an] enterprise” to
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24 Opinion of the Court 23-12958
illegally overturn the results of the presidential election. G A. C ODE
A NN . § 16-14-4(b). A criminal conspirator is not defined by any sin-
gle actus reus in furtherance, but by his agreement to join the conspir-
acy. 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 conspir-
acy charge. See McCright v. State, 336 S.E.2d 361, 363 (Ga. Ct. App.
1985). In other words, Georgia does not prosecute Meadows be-
cause 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. So we must look to the core of
the factual allegations to identify whether Meadows’s conduct in
aggregate furthered the alleged enterprise to overturn the election.
To allow Meadows to remove the action if any single allega-
tion in the indictment related to his official duties would run con-
trary to both the removal statute and precedent. See Mesa, 489 U.S.
at 131–32 (“It must appear that the prosecution of him, for what-
ever offense, has arisen out of the acts done by him.” (emphasis
added) (citation and internal quotation marks omitted)). Meadows
relies on Baucom v. Martin to argue that each overt act is dispositive
for removal. 677 F.2d 1346, 1347–48 (11th Cir. 1982) (affirming Su-
premacy Clause immunity for a Federal Bureau of Investigations
agent facing prosecution under Georgia’s RICO statute for
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allegedly administering one bribe). But Baucom was a Supremacy
Clause immunity case and did not concern the propriety of federal-
officer removal. See id. Even if it had, the charge against Baucom
alleged only one overt act, so that act represented the “heart” of
the state prosecution. But because Meadows’s culpability does not
depend on any discrete act, he cannot remove by proving that one
act was undertaken in his official capacity. The district court cor-
rectly determined that we must look to the “heart” of Meadows’s
conduct to determine whether his section 1442(a)(1) “act”—of con-
spiring to “unlawfully change the outcome of the election in favor
of Trump”—supports removal.
2. The “Color” of Meadows’s Office
Section 1442(a) permits the removal of a criminal prosecu-
tion commenced against any officer “for or relating to any act under
color of such office.” 28 U.S.C. § 1442(a)(1) (emphasis added). Acts
taken under color of office are those “vested with, or appear to be
vested with, the authority entrusted to that office.” Color of Office,
BLACK ’ S L AW D ICTIONARY (11th ed. 2019). The “color of office” el-
ement requires acts to be done “in enforcement of federal law.”
Mesa, 489 U.S. at 131–32 (citation and internal quotation marks
omitted). Meadows must identify a source of positive law for his
assertions of official authority for us to determine whether his al-
leged acts were attributable to exercises of that authority. See In re
Neagle, 135 U.S. at 75 (an official act is an “act which [the officer]
was authorized to do by the law of the United States” (emphasis
added)); Spalding v. Vilas, 161 U.S. 483, 498 (1896) (official actions
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26 Opinion of the Court 23-12958
are those “committed by law to [the officer’s] control or supervision”
(emphasis added)).
Meadows asserts that he proved his authority by testifying
to his official duties, and he describes the “color” of his office as
nearly limitless. He argues that anything that could be described as
“manag[ing] the President’s time and attention to ensure the effec-
tive operation of government” fell within his duties. He asserts that
his duties were “at least coextensive with those of the President”
and that “he is federal operations.” Meadows does not contest the
finding that he “was unable to explain the limits of his authority.”
Instead, he argues that his failure is not fatal to removal because we
must accept his assertions at face value under Acker. Meadows
would have us abdicate any analysis of the limits of his authority
and accept his “theory of the case” that virtually any function of
federal operations falls within the color of office of the chief of staff.
Acker, 527 U.S. at 432.
We cannot rubber stamp Meadows’s legal opinion that the
President’s chief of staff has unfettered authority, and Acker does
not instruct us to eschew our duty of independent review. Acker
credited two judicial officers’ “adequate threshold showing” on a
question of statutory interpretation. 527 U.S. at 432. The Supreme
Court credited the judges’ “theory of the case” when it declined to
“choose between [disputed] readings” of a municipal ordinance,
but that deference involved crediting a plausible reading of a specific
legal authority. Id. But Meadows’s theory of the case is not plausi-
ble. Acker does not instruct us blindly to accept an expansive
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proclamation of executive power relying on no source of positive
law. Instead, our judicial duty demands an independent assessment
of the limits of Meadows’s office.
Meadows asserts that the White House chief of staff has du-
ties related to the supervision of state elections and campaign-re-
lated “political” activity. In particular, he maintains that broad au-
thority and few limitations can be found in the Elections Clause,
the Take Care Clause, various election statutes, and the Hatch Act.
But the district court concluded, and we agree, that the federal ex-
ecutive has limited authority to superintend the states’ administra-
tion of elections—neither the Constitution, nor statutory law, nor
precedent prescribe any role for the White House chief of staff. And
even if some authority supported a role for the chief of staff in su-
pervising states’ administration of elections, that role does not in-
clude influencing which candidate prevails. After all, “[t]he Office
of the President has no preference for who occupies it.” Thompson
v. Trump, 590 F. Supp. 3d 46, 82 (D.D.C. 2022).
a. The White House Chief of Staff Has No Role
in Supervising State Elections.
Meadows concedes that the “Constitution does not spell out
a role for the President in the operation of state voting procedures
in federal elections.” The Constitution empowers only the states
and Congress to “regulate the conduct of [federal] elections.”
Roudebush v. Hartke, 405 U.S. 15, 24 (1972); see U.S. C ONST. art. I,
§ 4, art. II, § 1. As the Supreme Court has explained, the “Framers
of the Constitution intended the States to keep for themselves, as
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28 Opinion of the Court 23-12958
provided in the Tenth Amendment, the power to regulate elec-
tions.” Shelby County v. Holder, 570 U.S. 529, 543 (2013) (internal
quotation marks omitted) (quoting Gregory v. Ashcroft, 501 U.S. 452,
461–62 (1991)). The states are responsible for enacting “a complete
code for . . . elections,” including “regulations relati[ng] to . . . pre-
vention of fraud and corrupt practices [and] counting of votes.”
Moore v. Harper, 143 S. Ct. 2065, 2085 (2023) (first alteration in orig-
inal) (internal quotation marks omitted) (quoting Smiley v. Holm,
285 U.S. 355, 366 (1932)).
Nor does federal statutory law provide the White House
chief of staff any role in the supervision of state elections. For ex-
ample, the Electoral Count Act, Pub. L. No. 45-90, 24 Stat. 373
(Feb. 3, 1887), assigns duties to congressional officials—the Vice
President in his role as presiding officer of the Senate, the Speaker
of the House, senators, and representatives—but not to the Presi-
dent or his chief of staff. Cf. United States v. Sandlin, 575 F. Supp. 3d
16, 23 (D.D.C. 2021). Although Meadows offers a list of statutes
related to congressional oversight, he identifies only two sources
of election-related authority within the executive branch: the De-
partment of Justice Civil Rights Division and its Election Crimes
Branch. But he fails to explain how the duties of his office or his
charged conduct implicated either division of the Department.
Meadows argues that the Take Care Clause, U.S. CONST. art.
II, § 3, empowers the President with broad authority to “ensure
that federal voting laws are enforced.” But he concedes that the
President has no “direct control” over the individuals—members
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23-12958 Opinion of the Court 29
of Congress and state officials—who conduct federal elections. And
tellingly, he cites no legal authority for the proposition that the
President’s power extends to “assess[ing] the conduct of state offi-
cials.” We are aware of no authority suggesting that the Take Care
Clause empowers federal executive interference with state election
procedures based solely on the federal executive’s own initiative,
and not in relation to another branch’s constitutionally authorized
act.
b. The White House Chief of Staff May Not Engage in
Electioneering on Behalf of a Political Campaign.
Meadows argues that the district court incorrectly deter-
mined that the Hatch Act imposed limitations on his authority be-
cause the Act “does not operate to define the role of a President or
his senior aides.” But the Act applies to the President’s staff and
Meadows testified that he was bound by it. It admits no exceptions
to its prohibition on a federal official using his “official authority or
influence for the purpose of interfering with or affecting the result
of an election.” 5 U.S.C. § 7323(a)(1). And the prohibition extends
to any participation in “activity directed toward the success or fail-
ure of a political party, candidate for partisan political office, or par-
tisan political group.” 5 C.F.R. §§ 734.101, 734.302(b)(2).
We take Meadows’s point that the President is an inherently
“political leader[],” United States v. Nixon, 418 U.S. 683, 715 (1974),
who occupies a unique role by personally embodying one of “the
two political branches,” Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S.
1, 14 (2015). And the President’s subordinates, in their official
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30 Opinion of the Court 23-12958
duties, may “exercis[e] not their own but [the President’s] discre-
tion.” Myers v. United States, 272 U.S. 52, 132 (1926). But although
defining the limits of impermissible “political” activity is challeng-
ing, we reject Meadows’s assertion that there is “literally no way in
the real world” to separate governance from prohibited political or
campaign-related activity.
Electioneering on behalf of a political campaign is incontro-
vertibly political activity prohibited by the Hatch Act. Campaign-
ing for a specific candidate is not official conduct because the office
of the President is disinterested in who holds it. See Thompson, 590
F. Supp. 3d at 82. Indeed, the political branches themselves recog-
nize that electioneering is not an official federal function. The
Hatch Act provides congressional limitations on campaign-related
activity by federal employees. See 5 U.S.C. § 7323(a)(1). And the ex-
ecutive branch applies internal restrictions on electioneering: for
example, the Office of Legal Counsel does not allow campaign
travel to be considered an official expense. See Payment of Expenses
Associated with Travel by the President & Vice President, 6 Op. O.L.C.
214, 216–17 (1982).
The district court did not err in ruling, based on the Hatch
Act and Meadows’s own testimony, that activity on behalf of the
Trump reelection campaign was unrelated to Meadows’s federal
duties. Meadows testified that he understood the Hatch Act to pro-
hibit him from “advocat[ing] for a particular candidate” and from
“campaign[ing] actively . . . in [his] official title.” And he concedes
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23-12958 Opinion of the Court 31
that, for example, “[g]iving a speech in support of the President at
a campaign rally” would fall outside the scope of his office.
Meadows cannot have it both ways. He cannot shelter be-
hind his testimony about the breadth of his official responsibilities,
while disclaiming his admissions that he understood electioneering
activity to be out of bounds. That he repeatedly denied having any
role in, or speaking on behalf of, the Trump campaign, reflects his
recognition that such activities were forbidden to him as chief of
staff.
3. The Causal Nexus
Section 1442(a)(1) provides that prosecutions are removable
only when brought against officers “for or relating to” any act un-
der color of federal office. Meadows must establish some “causal
connection” or “association” between his alleged conspiracy-re-
lated 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). Still, Meadows must be “specific and positive” in showing
that his charged conduct “was confined to his acts as an officer.”
Symes, 286 U.S. at 520. And the Supreme Court has explained that,
in “a criminal case, a more detailed showing might be necessary
because of the more compelling state interest in conducting crimi-
nal trials in the state courts.” Willingham, 395 U.S. at 409 n.4; cf.
Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (“[D]icta from
the Supreme Court is not something to be lightly cast aside.” (cita-
tion and internal quotation marks omitted)).
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32 Opinion of the Court 23-12958
As the removing party, Meadows bears the burden of proof.
See Leonard, 279 F.3d at 972. Meadows was obligated to support the
factual averments linking his conduct and his office “by competent
proof.” United Food & Com. Workers Union, Loc. 919, AFL-CIO v. Cen-
terMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)
(quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189
(1936)); Leite v. Crane Co., 749 F.3d 1117, 1121–22 (9th Cir. 2014)
(applying the “competent proof” standard to federal-officer re-
moval). In determining whether Meadows’s proof was competent,
the district court was entitled to evaluate the demeanor and presen-
tation of witnesses, assess the credibility of testimony including
Meadows’s, and weigh competing evidence.
The district court carefully weighed all evidence relevant to
Meadows’s charged conduct before finding that he failed to “pro-
vide sufficient evidence” that his association with the alleged con-
spiracy was “related to any legitimate purpose of the executive
branch.” The district court credited Meadows’s denials of certain
overt acts and weighed only those he admitted committing. It
found only the text to Representative Perry, requesting the phone
number of the “leader of PA Legislature,” to be related to Mead-
ows’s official duties. The district court determined that the remain-
der of Meadows’s conduct involved either unauthorized interfer-
ence with state election procedures or prohibited campaigning. We
agree.
As we have explained, the Hatch Act limits a federal officer’s
electioneering. Meadows had no official authority to operate on
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23-12958 Opinion of the Court 33
behalf of the Trump campaign. But he offers no other plausible jus-
tification for calling and soliciting Secretary Raffensperger to alter
the certified returns for Georgia electors. Meadows testified to “set-
ting . . . up [the telephone call] with the attorneys where they could
find some kind of compromise” on the signature verification, but
he admits that the attorneys involved were employed by either
Trump personally or by the Trump campaign—no attorneys from
the Office of White House Counsel or the Department of Justice
were present. Meadows’s participation in the call reflected a clear
attempt to further Trump’s private litigation interests: he urged the
participants to “find[] a path forward that’s less litigious.” And Sec-
retary Raffensperger testified that he “felt that it was a campaign
call” because “[t]hose were Trump campaign lawyers.”
Meadows’s text to Watson was also self-evidently campaign-
related. He inquired, “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.” (Emphasis added). That election-
eering activity is not part of the executive power. Meadows later
testified that his text was not a “financial offer” and that he was not
actually speaking on behalf of the campaign, but the district court
was entitled to find otherwise.
Nor did Meadows’s official duties include interference with
state election procedures. Neither the Constitution, see Roudebush,
405 U.S. at 24, nor any federal statute, nor any precedent permits
the President’s chief of staff to oversee, disrupt, or change the state
results of presidential elections. Authority over electoral
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34 Opinion of the Court 23-12958
proceedings is expressly delegated to the states. See Moore, 143 S.
Ct. at 2085. Meadows offers no official rationale for traveling to
Cobb County and attempting to infiltrate the nonpublic signature-
match audit being performed by law enforcement officers. Alt-
hough Meadows testified that he was trying to ensure that “every-
thing [was] being done right,” he stated that he traveled to Georgia
under his own discretion and that “no one directed [him] to go.”
Meadows also cannot point to any authority for influencing
state officials with allegations of election fraud. Meadows testified
that his meeting with the Michigan state officials mostly discussed
the purported fraud in the 2020 election and was related to “Presi-
dent Trump[’s] . . . personal interest in the outcome of the election
in Michigan.” He testified to arranging a call between Trump and
Watson, in which Trump reiterated allegations of fraud, asserted
he had won Georgia “by hundreds of thousands of votes,” and sug-
gested to Watson that “when the right answer comes out you’ll be
praised.” But the White House chief of staff has no role in oversee-
ing signature verifications or recount processes, or in superintend-
ing states’ administration of election procedures. Meadows cannot
establish that any of these acts related to his federal office.
At bottom, whatever the chief of staff’s role with respect to
state election administration, that role does not include altering
valid election results in favor of a particular candidate. So there is
no “causal connection” between Meadows’s “official authority”
and his alleged participation in the conspiracy. See Willingham, 395
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23-12958 Opinion of the Court 35
U.S. at 409 (citation and internal quotation marks omitted). Mead-
ows is not entitled to invoke the federal-officer removal statute.
IV. CONCLUSION
We AFFIRM the order remanding this criminal action.
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23-12958 ROSENBAUM, J., Concurring 1
ROSENBAUM, Circuit Judge, joined by A BUDU , Circuit Judge, con-
curring:
Imagine that the day the President of the United States
leaves office, sixteen states where his policies were unpopular in-
dict him and all his Cabinet members, simply for carrying out their
constitutionally authorized duties.1 Is it possible that state courts
in those sixteen jurisdictions would fairly, correctly, and promptly
resolve any federal defenses the former President and Cabinet
members might have? Of course, it is. It may well even be
likely. But given the local sentiment that led to the indictments in
this hypothetical scenario, it’s also possible they would not.
Yet under 28 U.S.C. § 1442(a)(1), the federal-officer removal
statute, the former President and Cabinet members would have no
guarantee that a federal court (the Supreme Court, in that context)
would ever consider their federal defenses on direct appeal.2 And
even if the Supreme Court eventually considered their cases, that
wouldn’t happen until after they had spent significant time and
money defending themselves. So even though a federal court
1 This hypothetical scenario does not describe Mark Meadows’s situation.
Meadows has not established that the State has charged him for or relating to
an act under color of his office as White House chief of staff. For that reason,
he could not remove his case to federal court under 28 U.S.C. § 1442(a)(1),
even if that statute extended to former federal officers who undertook their
challenged acts while in office.
2 A person convicted in state court can file a habeas action in federal court
under 28 U.S.C. § 2254, but not until after he’s exhausted all remedies available
in state court. So that person may serve a substantial part of his sentence of
incarceration before federal habeas is granted.
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2 ROSENBAUM, J., Concurring 23-12958
might have found their federal defenses meritorious as a matter of
law and dismissed their cases, these former officials may not see a
federal forum until much of the damage has been done. In short,
foreclosing removal when states prosecute former federal officers
simply for performing their official duties can allow a rogue state’s
weaponization of the prosecution power to go unchecked and fes-
ter.
The consequences of that are profound. For starters, prose-
cutions of former federal employees for undertaking locally unpop-
ular actions—but actions that are still within the bounds of their
official duties3—can cause a crisis of faith in our government and
our courts. Not only that, but these types of actions can cripple
government operations, discourage federal officers from faithfully
performing their duties, and dissuade talented people from
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. That’s
so because, “[u]nder our federal system, it goes without saying that preventing
and dealing with crime is much more the business of the States than it is of the
Federal Government.” Arizona v. Manypenny, 451 U.S. 232, 243 (1981) (cleaned
up). And states have a “compelling . . . interest in conducting criminal trials in
the state courts,” Willingham v. Morgan, 395 U.S. 402, 409 n.4 (1981), when an-
yone—including a former federal officer—has allegedly violated state criminal
law and has not done so to carry out federal law. As the Supreme Court has
explained, “Absent any indication that the removal statute was intended to
derogate from the State’s interest in evenhanded enforcement of its laws, we
see no justification for providing an unintended benefit to a defendant who
happens to be a federal officer.” Manypenny, 451 U.S. at 243.
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23-12958 ROSENBAUM, J., Concurring 3
entering public service. After all, who needs the aggravation and
financial burden from being criminally prosecuted (even in one
state) just for carrying out official responsibilities? And federal of-
ficers who are reluctant to do their duty, or a dearth of talented and
enthusiastic people willing to serve in public office, could paralyze
our democratic-republic system of government.
This nightmare scenario keeps me up at night. In my view,
not extending the federal-officer removal statute to former officers
for prosecutions based on their official actions during their tenure
is bad policy, and it represents a potential threat to our republic’s
stability. Of course, my role as a judge does not allow me to re-
write laws to fit my view of what’s wise. Rather, I must faithfully
interpret the laws as they are written. So today I join the Majority
Opinion because it does that.
But Congress enjoys the prerogative to revise Section
1442(a)(1) to include former federal officers. And I respectfully
urge Congress to consider prompt action to do just that. A simple
amendment to Section 1442(a)(1) to cover former federal officers—
that is, to allow former federal officers prosecuted for actions for or
relating to their official duties to remove their cases to federal
court—would fix this grave problem.
My analysis proceeds in two parts. First, I show that Con-
gress has long recognized removal as an invaluable tool in protect-
ing current federal officers from state prosecutions brought against
them only for carrying out their official responsibilities. Second, I
explain how extending this protection to former federal officers for
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4 ROSENBAUM, J., Concurring 23-12958
their acts in the line of duty also furthers the purposes of federal-
officer removal.
I.
Unfortunately, my nightmare scenario has some precedent
in our nation’s history—at least with respect to current federal of-
ficers. This section recounts just some of that history and shows
how Congress has used federal-officer removal statutes to address
the problem of state prosecution of (then-current) federal officers
for carrying out their official (though locally unpopular) responsi-
bilities in the past.
I begin with the first time this problem seems to have arisen,
more than 200 years ago. During the War of 1812, the United
States imposed an embargo on trade with England. See Willingham,
395 U.S. at 405. New Englanders detested that policy. See id. So
out of a concern for “protect[ing] federal officers [who enforced the
embargo] from interference [with their official duties] by hostile
state courts,” Congress enacted a federal-officer removal provision
in an 1815 customs statute. Id. Among other things, that provision
authorized customs officers to remove to federal court state prose-
cutions against them for conducting their official duties. See Ten-
nessee v. Davis, 100 U.S. 257, 267–68 (1879).
Not twenty years later, the problem of state hostility to fed-
eral policies and the officers who executed them as part of their
official duties arose again—this time in the South. In 1828 and
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23-12958 ROSENBAUM, J., Concurring 5
1832, Congress imposed tariffs that Southerners deeply disliked.4 A
South Carolina convention responded by purporting to nullify
those federal tariffs. See id. It also professed to criminalize United
States officers’ local collection of duties under the tariff laws. Id.
Congress reacted by passing the Force Act of 1833. Id. As
relevant here, that law authorized removal of any state criminal
prosecution of a federal officer for performing his official duties un-
der the revenue laws. Id. At the time, Senator Daniel Webster
reasoned that removal would “give a chance to the [federal] officer
to defend himself where the authority of the law was recognised
[sic],” 9 Cong. Deb. 461 (1833), rather than a state forum that might
resist federal policy. And the Supreme Court has characterized
“[t]he purpose of” the Force Act’s federal-officer removal provision
as “prevent[ing] paralysis of operations of the federal government.”
Gay v. Ruff, 292 U.S. 25, 32 (1934).
Congress enacted federal-officer removal provisions during
other periods of our history as well—for instance, during the Civil
War and Reconstruction, when protracted state resistance against
the federal government existed. See Act of March 3, 1863, ch. 81, §
5, 12 Stat. 755, 756–57 (1863); Act of July 13, 1866, ch. 184, § 67, 14
Stat. 171 (1866).5 In support of these provisions, legislators rose to
4 Nullification Proclamation: Primary Documents in American History, Library of
Congress Research Guides, (last visited Dec. 17, 2023)
https://perma.cc/7GWT-GJWK.
5 Also in 1866, Congress enacted the statutory predecessor to 28 U.S.C. §
1443(2), which authorized removal of all criminal prosecutions “commenced
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6 ROSENBAUM, J., Concurring 23-12958
describe the conditions federal officers were facing in states hostile
to their execution of official federal duties.
Senator Daniel Clark recounted, “A great many vexatious
suits have been brought . . . where Federal officers have been
pushed very hard and put to great hardships and expense, and
sometimes convicted of crime, for doing things which were right in the
line of duty, and which they were ordered to do and which they
could not refuse to do.” Cong. Globe, 39th Cong., 1st Sess. 1880
(1866) (emphasis added). And Representative Samuel McKee
pointed out some consequences of these legal actions: in his
words, these actions were “harassing, annoying, and even driving
out of the State the men who stood true to the flag . . . . There no
protection is guarantied [sic] to a Federal soldier.” Cong. Globe,
39th Cong., 1st Sess. 1526 (1866).
So it’s no surprise that federal officers later relied on the 1863
and 1866 federal-officer removal provisions when they faced indict-
ment for acting within the scope of their official federal duties. For
instance, in 1879, a federal officer was executing his official respon-
sibilities as a revenue collector to seize illegal distilleries, when a
group of armed men fired on him. Davis, 100 U.S. at 260–61. In
in any State court against any officer, civil or military, or other person, for any
arrest or imprisonment, trespasses, or wrongs done or committed by virtue or
under color of authority derived from this act or the act establishing a Bureau
for the relief of Freedmen and Refugees, and all acts amendatory thereof.”
Civil Rights Act of 1866, 14 Stat. 27 (1866); see also City of Greenwood, Miss. v.
Peacock, 384 U.S. 808, 821–22 (1966). Congress was concerned with state in-
terference with federal Reconstruction and legislated accordingly.
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23-12958 ROSENBAUM, J., Concurring 7
self-defense, the officer returned fire, striking and killing one of the
aggressors. Id. Tennessee charged the federal officer with murder.
Id. But the 1866 federal-officer removal provision allowed the of-
ficer to remove the matter to federal court. Id. at 271.
As the Supreme Court explained, if a federal officer acting
within his official duties “can be arrested and brought to trial in a
State court, for an alleged offence [sic] against the law of the State,
yet warranted by the Federal authority they possess, and if the [fed-
eral] government is powerless to interfere at once for their protec-
tion,—if their protection must be left to the action of the State
court,—the operations of the [federal] government may at any
time be arrested at the will of one of the States.” Id. at 263. Even
more to the point, the Supreme Court warned that “[t]he State
court may administer not only the laws of the State, but equally
Federal law, in such a manner as to paralyze the operations of the
government.” Id.
In later years, the Supreme Court offered more observations
about these federal-officer removal provisions. In Mitchell v. Clark,
the Court noted, for example, that the purpose of the Civil War
and Reconstruction federal-officer removal provisions was to pro-
tect federal officers “engaged in the discharge of very delicate du-
ties among a class of people who . . . were intensely hostile to the
government”— those rebelling against the Union. 110 U.S. 633, 639
(1884).
Prohibition presented another period in which federal law
won no popularity contests in some locales. So through the
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8 ROSENBAUM, J., Concurring 23-12958
National Prohibition Act, Congress extended federal-officer re-
moval to prohibition officers. National Prohibition Act, ch. 85, §
28, 41 Stat. 305, 316 (1919). That provision traced its origins to the
1863 and 1866 federal-officer removal provisions. State of Maryland
v. Soper, 270 U.S. 9, 31–32 (1926). As the Supreme Court explained,
“Congress not without reason assumed that the enforcement of
the National Prohibition Act was likely to encounter in some quar-
ters a lack of sympathy and even obstruction, and sought . . . to
defeat the use of local courts to embarrass those who must execute
it.” Id. at 32. So it authorized federal-officer removal to combat
that problem.
Local opposition to federal policy—and use of the federal-
officer removal statute to mitigate prejudice from that opposi-
tion—is by no means a vestige of the past. In 2006, the Tenth Cir-
cuit upheld federal-officer removal (and immunity) for an em-
ployee of the U.S. Fish and Wildlife Service who was prosecuted for
misdemeanor trespass in Wyoming state court. Wyoming v. Living-
ston, 443 F.3d 1211, 1225, 1230 (10th Cir. 2006). The defendant had
entered private property while capturing and collaring wolves as
part of a federal operation to reintroduce grey wolves to the re-
gion. Id. at 1213–15. But because Wyoming is “heavily dependent
on livestock for its economic well-being,” the wolf reintroduction
program was “met with vehement local opposition.” Id. at 1213–
14. Indeed, the court noted record evidence that the prosecution
was “not a bona fide effort to punish a violation of Wyoming tres-
pass law . . . but rather an attempt to hinder a locally unpopular
federal program.” Id. at 1231. So it concluded that federal-officer
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23-12958 ROSENBAUM, J., Concurring 9
removal was proper to prevent that local “hind[rance].” See id. at
1225, 1231.
This brief walk through some of our history shows that
states have in fact indicted federal officers for carrying out their of-
ficial duties when those duties have been locally unpopular. And
that local opposition is not limited to a particular policy, era, or re-
gion of the country. But recognizing the potential harms from
state indictments of federal officers for acting within the scope of
their jobs, Congress has enacted (and reenacted) federal-officer re-
moval protection to “protect federal officers from interference by
hostile state courts.” Willingham, 395 U.S. at 405.
II.
With this historical backdrop in mind, I return to my present
concern: the lack of removal protection for former federal officers
prosecuted by states for performing their official (but perhaps lo-
cally unpopular) federal duties.
To be sure, there’s a certain logic behind the limitation of
Section 1442(a)(1)’s removal protection to current federal officers.
Prosecuting current (not former) federal officers for performing
their sworn federal duties makes the most sense if a state seeks to
interfere with ongoing federal functions. Prosecuting someone
who is no longer a federal officer, generally, will not directly para-
lyze ongoing federal operations. And as the Majority Opinion
points out, we must “retain[] the highest regard for a State’s right
to make and enforce its own criminal laws.” Maj. Op. at 19 (quot-
ing Manypenny, 451 U.S. at 243).
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10 ROSENBAUM, J., Concurring 23-12958
It’s also true that state courts are certainly capable of evalu-
ating federal defenses. See id. at 20–21. And in most cases, we can
count on them to do so correctly and fairly. Plus, state officials may
try to be respectful of ongoing government operations by waiting
to charge federal officers until they leave office.
But Congress created federal-officer removal statutes be-
cause it recognized that the risks to our federal government are just
too great if 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. And a state trying to interrupt a federal policy or
(misguidedly) vindicate a local interest it feels a federal law has
threatened could view prosecuting former federal officers for per-
forming their official federal duties as a way to effect those objec-
tives. That’s especially so because, as things currently stand, a state
could not hope to accomplish these goals by indicting current fed-
eral officers without risking the possibility that they would remove
the actions to federal court.
Yet state prosecutions of former federal officers for doing
their official duties can also cripple the federal government, just like
prosecutions of current federal officers can. Consider an ongoing
federal policy or operation. If a state prosecutes a former federal
officer for his official role in that, current federal officers who are
responsible for continuing to carry out that policy or operation
may well be chilled from doing so out of concern that they, too,
will be prosecuted by the state when they leave their positions.
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23-12958 ROSENBAUM, J., Concurring 11
Or if states start indicting high-profile former federal offic-
ers, upon stepping down, for their official actions while in office,
our national leaders may cease taking any significant action for the
country in an effort to avoid later state prosecution. After all, it’s
hard to think of any federal policy that’s not unpopular somewhere
in the country. If undertaking meaningful action within the scope
of official authority becomes too risky for a federal officer because
she will have to pay the state piper later, why bother even entering
public service in the first place? But without talented and enthusi-
astic people willing to serve our country, the future would be
bleak.
And I haven’t even started to discuss the undermining effect
that constant and repeated state prosecutions of former federal of-
ficers for doing their official duties would have on the perceived
legitimacy of our system of government. The longer a state pros-
ecution drags on when the former federal officers are entitled to
dismissal, the more those who disfavor the officers’ official duties
may wrongly come to believe that the federal government has
acted illegally. And the more this happens, the more it chips away
at (and over time, takes a sledgehammer to) our government’s per-
ceived legitimacy.
These harms are serious. Fortunately, though, they can also
be easily addressed if Congress amends the federal-officer removal
statute to expressly include former federal officers.
The government’s interests in protecting against rogue state
prosecutions of federal officers for carrying out their official duties
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12 ROSENBAUM, J., Concurring 23-12958
do not evaporate as soon as a particular officer leaves her post. Nor
do they evaporate upon a change in presidential administration. So
the protections for federal officers likewise should not evaporate
when they leave their government employment.
Our decision today has consequences both for former fed-
eral officers and the federal government itself. To mitigate those
consequences, and to reinforce the purposes of federal-officer re-
moval, I respectfully urge Congress to amend Section 1442(a)(1) to
cover former officers.
III.
In sum, the text and structure of the federal-officer removal
statute—especially given our recent precedent United States v. Pate,
84 F.4th 1196 (11th Cir. 2023) (en banc)—compel our conclusion
that former federal officers cannot invoke the statute. But not cov-
ering former federal officers comes with a great potential cost to
our government and those who serve in it. So I respectfully urge
Congress to amend Section 1442(a)(1) to protect former federal of-
ficers.
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