5 ways Mark Meadows’s testimony in Georgia federal court could backfire

Mark Meadows threw the dice in an Atlanta federal courtroom Monday, taking the witness stand while under indictment by a Fulton County, Ga., grand jury.

Meadows, who was former President Trump’s chief of staff, testified in a bid to get his indictment “removed” to federal court for trial. The odds that his testimony comes back to haunt him are enormous.

Before counting the ways, here’s the background.

Federal law entitles a former U.S. official indicted by a state grand jury, as Meadows was, to remove his case if he meets two conditions: first, that he can prove that he was indicted for actions he took officially and not personally; second, that he has a “colorable,” or plausible, defense under federal law.

The focus of Monday’s hearing was on the first condition. Meadows has the burden of proving that he was acting within the scope of his official federal duties.

On the stand, he insisted, according to Politico’s reporting, “that all the actions he’s charged with in the indictment … were part of his official duties as chief of staff.”

Here are five ways that his testimony may well prove damaging to his cause.

First, Judge Steve C. Jones asked him, “Is there a role under Article II of the Constitution for the president in a state election or any election?”

When the judge deciding your case asks you a question that can determine the outcome, and you have the burden of convincing him you’re right, you better have a good answer. Meadows didn’t. “I don’t know enough to opine,” he responded.

The best he could do was to wander into the valley of the vague. He offered, blearily, that it was his responsibility “to keep [Trump] well-informed and well-advised on a variety of issues.”

Not good.

Meadows further showed his uncertainty when pressed on cross-examination. Per the Atlanta Journal-Constitution, Fulton County special prosecutor Anna Green Cross “asked whether he was acting on behalf of Trump’s reelection campaign — rather than as a federal employee.”

Meadows responded, “I would assume that [making sure federal elections are accurate] has a federal nexus.”

The problem with his assumption is this: The Constitution gives states, not federal officials, authority for running federal elections. And even if federal officials had any such power, there would simply be no way, for obvious reasons, for a president to have any role in overseeing his own election.

That’s what Trump was doing, with Meadows on the phone, in his infamous Jan. 2 phone call to Georgia Secretary of State Brad Raffensperger.

Meadows had no more authority than existed in the office that he was serving.

Second, on cross-examination, Meadows did himself more harm. Asked about whether solely advancing the interests of the campaign would be outside the scope of his responsibilities, Meadows answered, “I would not agree with that.”

Ouch. Dead wrong. If you were “solely” campaigning, the Hatch Act prohibits federal employees like you from engaging in campaign activity.

Third, Meadows’s failure to offer persuasive testimony that his conduct was governmental will undermine his motion to get his case dismissed on grounds that he is immune from prosecution under federal law. To prevail, he also needs to have been acting in his official position.

Fourth, Meadows’s testimony will shadow him in a future trial. Prosecutors can use every word that he spoke Monday, including Meadows’s admission, on cross-examination, that “there is no role for the federal government when it comes to states certifying elections.” That’s precisely the role the indictment alleges that Meadows was playing in a racketeering enterprise.

Last, in case there was any doubt, Meadows’s testimony in Monday’s proceeding will likely foreclose testifying on his own behalf at a future trial. As Politico reported, he “appeared unsure of himself at times, saying often that he could not recall details of events in late 2020 and early 2021.” Cross-examination at trial about his admitted poor memory would be devastating to anything he was desperate enough to get onto the witness stand to assert to a jury.

One more thing. If Meadows’s testimony fails to convince Judge Jones on the issue of removal, Trump’s prospects are doomed on the similar motion he is likely contemplating. That claim by Trump is less likely to succeed than Meadows’s asserted right.

The former president, after all, was the self-interested candidate for reelection pressuring Georgia officials to miraculously and illegally convert him from loser to winner in the state. Unlike Meadows, Trump can’t claim to have been following orders that he was giving.

No one can say for certain that Meadows’s motion will fail. Litigators know better than to predict with complete confidence what a judge will do, especially in a case where the legal burden is light for a party asserting a right to removal.

But if you bet on his claim having success after his testimony Monday, be sure to get very good odds.

Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy