Why Trump didn't try to move the Georgia case to federal court

Oct. 2, 2023 3:32 PM PT

What should we make of Donald Trump’s surprising recent decision not to try moving Fulton County Dist. Atty. Fani Willis’ case against him to federal court?

Most observers, including me, had anticipated that Trump would attempt to get the case out of the Georgia court, and not simply because it’s a standard move for a former federal official.

The federal venue would have given Trump a more favorable jury pool drawn from more rural areas. It also arguably would have been more sympathetic to a claim of immunity from state charges based on the constitutional supremacy of federal law. Unlike the state court, it would not have allowed cameras, keeping the trial less visible. And seeking removal would have served Trump’s broader strategy of delay because the motion would be entitled to automatic appeal and potential Supreme Court review.

Indeed, Trump’s lawyers had suggested to Fulton County Superior Court Judge Scott McAfee that he would be seeking to remove the case. But on Thursday, the last possible day, they filed an “updated notice” that he intends to remain in the state forum. His team gratuitously added that the decision was based on Trump’s “well-founded confidence that this Honorable Court intends to fully and completely protect his constitutional right to a fair trial and guarantee him due process of law.”

So what changed? A number of observers pointed out that two of Trump’s co-defendants in the racketeering prosecution, former White House Chief of Staff Mark Meadows and former Assistant Atty. Gen. Jeffrey Clark, have had a rough ride pursuing their own removal bids. Trump may have calculated that his odds were similarly long and not worth the risk.

The problem with this theory is that Trump has not hesitated to pursue other legal long shots. Even if he loses, the attempts provide more opportunities for delay and more talking points for his refrain that the system is aligned against him. And even though his alleged criminal conduct represented an outrageous dereliction of duty, there would be some chance that the Supreme Court would rule that the president of the United States can’t be made to answer virtually any state criminal charge.

Other commentators posited that Trump decided he could ride the coattails of Meadows, who may have the strongest removal case among the 19 defendants. Although U.S. District Judge Steve C. Jones denied Meadows’ motion last month, he could yet prevail on appeal, and there is a possibility that most of the other defendants would then follow him to federal court.

But if Trump’s true preference were to be in federal court, there would be no reason for him not to press his own claim. It’s true that arguing for removal would require Trump to reveal some of his strategy, but no more than he already has. His lawyers have made it clear that his federal defense, like Meadows’, will turn on an immunity claim.

What Trump’s latest filing does suggest is that he has determined that the state court is better for him than the federal court. That means that all the factors that might have favored removal came to be outweighed in his mind.

Could it be, as some have suggested, that Trump wants the proceedings televised to serve his insatiable need to make a spectacle?

Not likely: The TV factor was already on the table when Trump inclined in the other direction. And a defendant’s job at trial is to sit impassively all day every day, which is not among the former president’s talents. Trump couldn’t help but display an occasional grimace or flash of anger that would be featured on all the evening news shows. And the damning evidence against him will be more dramatic on television, especially after Trump inevitably decides to stop attending the trial.

That leaves one most likely explanation for Trump’s decision: the judges involved.

Jones, the judge who has heard the removal motions, would preside over a trial in federal court. He is a seasoned African American jurist appointed to the Georgia bench by a former Democratic governor before President Obama nominated him to federal court in 2011. And he has ruled firmly and consistently against the removal motions in this case.

The Georgia trial judge, McAfee, is a white former member of the conservative Federalist Society. A recent appointee of Georgia’s current Republican governor, Brian Kemp, he is up for reelection in 2024.

In Trump’s Manichaean way of dividing the world between his perceived friends and enemies, his prospects for charming and cajoling McAfee are far greater than with Jones, whose biography calls out his loathed predecessor in the White House.

It’s important to note that McAfee has been an exemplary judge in this case to date — well-prepared, evenhanded and decisive. Nevertheless, his profile is bound to reflexively appeal to Trump given the former president’s cynical view of the justice system and the world.

We should hope that Trump’s crass read on the judge — along with his general view that every court ruling can be predicted by party affiliation — is wrong. I suspect that it is.

Harry Litman is the host of the “Talking Feds” podcast. @harrylitman