Perhaps the single most important motion Trump will make concerning his Georgia RICO case will be a motion to get the proceedings out of the Georgia state court system.
It will be the first motion Trump files.
A change of venue would not mean that Trump would face federal charges or change any portion of the indictment.
For Trump, the move would bring a combination of two possible advantages.
First, if removed to federal court, it would vastly expand the jury pool. The pool would go beyond the highly Democratic Fulton County to the 50-50 Northern District of Georgia.
Jurors would be drawn from Fulton County, the Atlanta suburbs, exurbs, and rural Georgia to the north.
Second, Trump would have a shot at getting a U.S. District Court judge that he appointed, along with the assumption that the judge would see the case from a more “Trump-friendly” point of view.
According to a Politico report, Trump would have a “Four in Fifteen” chance of getting a judge he appointed. Basically a one-in-three. This last “advantage” is a bit dubious.
There are very few Aileen Cannons out there. A lot of Trump-appointed judges easily ruled against him in suits filed right after the election. Once confirmed by the Senate and on the bench, a judge has no duty to the person who appointed him or her.
Indeed, if we look at our current Supreme Court, once the Senate confirms a justice, a justice has no duty to follow their exact testimony given within the last four years, as we all saw to our horror in the Dobbs case.
Trump’s chances of successfully removing the case are low.
Trump tried to remove his New York case to federal court, arguing that the removal involved his duty as a candidate for federal office.
He has a better chance in Georgia but still not a “good” chance.
As Politico reports:
“To try to get the case into federal court, Trump is expected to argue that much of the conduct he’s been charged with was undertaken in his capacity as an officer of the federal government, because he was still president during the critical period when he and his allies attempted to subvert the 2020 election results. A federal law, known as a “removal statute,” generally allows any “officer of the United States” who is prosecuted or sued in state court to transfer the case to federal court if the case stems from the officer’s governmental duties.”
The RICO charges, almost by definition, rule out the possibility that Trump acted in his official capacity as president. No, he was acting as the head of the Trump campaign or as “Donald Trump,” not as the president of the United States.
Additionally, the savvy Fani Willis included a count that occurred on September 21, 2021 —the day that Trump urged Georgia’s secretary of state to “decertify” the election and announce Trump as the “true winner.”
Trump certainly has a better chance of winning removal in Georgia than he did in New York. At least Trump was in office at the time the crimes occurred. (With the one exception above).
Politico also cites a Brookings Institute study conducted last year, which found that Trump would have little chance of success. As the Bookings Institute report states:
“[N]either the Constitution nor applicable federal statutes vest the president with any authority or responsibility to interfere with the administration of the Georgia election.”
Most judges, by far, are decent people who are just going to follow the law (I said “most”).
But I might also point out that federal dockets are notoriously tight, to begin with, and very, very few U.S. District Court judges want to find three to six months in their schedule for a trial with 19 defendants.
It is surprising to me that this case was not charged by the U.S. Attorney for the Northern District of Georgia, given the phone calls across state lines and violations of federal law, but the U.S. Attorney is under Attorney General Merrick Garland, and, well, it didn’t happen.
But Trump’s motion will happen. It has a colorable chance of success, though unlikely. And it will be damned important.
This column is primarily based on original reporting by Kyle Cheney and Erica Orden of Politico.
I can be reached at jasonmiciak@gmail.com and on Twitter @JasonMiciak.
Editor’s Note: This is an opinion piece reflecting the opinion of the author alone.
