1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 State of Arizona, et al., No. CV-24-02063-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Mark Meadows,
13 Defendant. 14 15 At issue is Mark Meadows’s Notice of Removal (Doc. 1, Notice of Removal), to 16 which the State of Arizona has filed a Response and request to remand (Doc. 7, Response), 17 and in support of which Mr. Meadows filed a Reply (Doc. 8, Reply). The Court also has 18 considered Mr. Meadows’s Bench Memorandum Regarding Evidentiary Standard for 19 Removal Hearing (Doc. 9) and the state’s Response thereto (Doc. 19). On September 5, 20 2024, pursuant to 28 U.S.C. § 1455(b)(5), the Court held an evidentiary hearing. (Doc. 13.) 21 For the reasons set forth below in detail, the Court finds that Mr. Meadows fails to present 22 good cause for his untimely filing of his Notice of Removal, and that in any event, an 23 evaluation on the merits yields that he fails to demonstrate that the conduct charged in the 24 state’s prosecution relates to his former color of office as Chief of Staff to the President. 25 The Court therefore will remand this matter to the state court. 26 I. Background 27 On April 23, 2024, an Arizona grand jury indicted eighteen individuals on nine 28 felony counts pertaining to an alleged attempt to illegally overturn the results of the 2020 1 presidential election conducted in Arizona. The State contends that, following the election, 2 the eighteen charged individuals participated in an organized “scheme” to “prevent the 3 lawful transfer of the presidency.” (Doc. 1-1 at 110–67, Indictment at 13.) According to 4 the State, the actions undertaken by the charged individuals pursuant to this scheme 5 included the commission of various state-law felonies, including one count of conspiracy, 6 one count of fraudulent schemes and artifices, one count of fraudulent schemes and 7 practices, and six counts of forgery. The individuals charged by the State include the eleven 8 individuals who acted as so-called “fake electors” (corresponding to the eleven votes 9 allotted to Arizona in the electoral college), as well as seven individuals who allegedly 10 orchestrated and supported the scheme behind the scenes. (Indictment at 17–21.) Among 11 these behind-the-scenes indictees is Mark Meadows, who served as President Trump’s 12 Chief of Staff from 2020–2021 and at all times relevant to this case. In particular, the State 13 alleges that Mr. Meadows “worked with members of the Trump Campaign to coordinate 14 and implement the false Republican electors’ votes in Arizona” and “was involved in the 15 many efforts to keep [Trump] in power despite his defeat at the polls.” (Indictment at 21.) 16 Following his indictment and subsequent arraignment, Mr. Meadows removed the 17 state criminal prosecution to federal court pursuant to 28 U.S.C. §§ 1442, 1455. Because 18 the Court did not deem summary remand appropriate, the Court scheduled an evidentiary 19 hearing as required by § 1455(b)(5). Prior to the evidentiary hearing, the State filed a 20 Response opposing jurisdiction and requesting remand to state court. Mr. Meadows filed a 21 Reply, but he also filed a “bench memorandum” on the eve of the evidentiary hearing, to 22 which the State lacked sufficient time to respond in kind. In the interest of fairness, the 23 Court permitted the State to file a supplemental bench memorandum of its own following 24 the evidentiary hearing. Having read the briefs and considered the issues, the Court now 25 addresses the propriety of removal in this case. 26 II. Discussion 27 The well-pleaded complaint rule typically precludes removal of cases in which 28 federal jurisdiction exists only by virtue of a federal defense. See Jefferson County v. Acker, 1 527 U.S. 423, 430–31 (1999). However, Congress has enacted a limited exception to the 2 general rule. “Under the federal officer removal statute, suits against federal officers may 3 be removed despite the nonfederal cast of the complaint; the federal-question element is 4 met if the defense depends on federal law.” Id. The federal officer removal statute is 5 codified at § 1442(a)(1), and it provides in relevant part: 6 (a) A civil action or criminal prosecution that is commenced in a State court 7 and that is against or directed to any of the following may be removed by 8 them to the district court of the United States for the district and division embracing the place wherein it is pending: 9 (1) The United States or any agency thereof or any officer (or any 10 person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act 11 under color of such office . . . . 12 13 The Supreme Court has explained that, in order to successfully remove a case under 14 § 1442(a)(1), a federal officer must (1) raise a colorable federal defense and (2) establish 15 that the prosecution is for or relating to an act under color of office. Acker, 527 U.S. at 431. 16 “To satisfy the latter requirement, the officer must show a nexus, a ‘“causal connection” 17 between the charged conduct and asserted official authority.’” Id. (quoting Willingham v. 18 Morgan, 395 U.S. 402, 409 (1969)). 19 In their briefing, both Mr. Meadows and the State urge the Court to adjudicate this 20 case according to a three-prong test that would require Mr. Meadows to show (1) that he is 21 a federal officer within the meaning of the statute, (2) that there exists a causal nexus 22 between the charged conduct and Mr. Meadows’s official duties, and (3) that Mr. Meadows 23 possesses a colorable federal defense. This three-prong test originates in caselaw 24 addressing the propriety of removals by private persons acting under federal officers, in 25 contrast to removals by federal officers themselves. The principal case relied upon by 26 Mr. Meadows makes this clear. See DeFiore v. SOC LLC, 85 F.4th 546, 553 (9th Cir. 2023) 27 (holding that “a removing private entity must show that ‘(a) it is a “person” within the 28 meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a 1 federal officer's directions, and plaintiff’s claims; and (c) it can assert a “colorable federal 2 defense.”’” (emphasis added) (quoting Goncalves ex rel. Goncalves v. Rady Childs. Hosp. 3 San Diego, 865 F.3d 1237, 1244 (9th Cir. 2017))). Although the distinction between the 4 tests outlined for federal officers versus persons acting under such officers might seem 5 slight, the difference can be material. For instance, the Ninth Circuit recently held that the 6 “under color of such office” requirement is subsumed by the “acting under” and “causal 7 connection” requirements and that satisfaction of the latter two criteria obviates the need 8 to conduct a separate “under color” analysis. See id. at 558 n.7. Although it may be sensible 9 to aggregate the “under color” requirement with the “acting under” requirement in cases 10 involving removal by a private entity, it would be a mistake to do so here. First, there is no 11 “acting under” analysis in a case where the removing defendant is himself a federal officer. 12 And second, the Supreme Court’s holding in Acker clearly treats the “under color” criterion 13 as a standalone requirement, at least insofar as concerns cases in which the removing 14 defendant is himself a federal officer, as was the case in Acker. See 527 U.S. at 431. Acker 15 makes plain that, far from replacing the “under color” requirement, the requisite causal 16 connection between the charged conduct and the asserted federal authority is the means by 17 which a court is to assess whether a criminal prosecution is for or relating to an act under 18 color of federal office. Therefore, with respect to cases in which the removing party is a 19 federal officer and not a private entity, the Court does not read the Ninth Circuit’s opinion 20 in Defiore as rejecting the “under color” component of the analysis. 21 Nevertheless, the Court sees no issue with using the test urged by the parties here. 22 Although the three-prong test finds its genesis in cases involving removals by private 23 entities, the parties have sufficiently modified the test to comport with the circumstances 24 presented in the case at bar. Despite citing to various Ninth Circuit cases that include an 25 “acting under” component, the parties have omitted any mention of the “acting under” 26 requirement. This is the same approach taken by the Eleventh Circuit in its recent opinion 27 disposing of a case involving facts very similar to those here. Although it cited to a case 28 from the private-entity context, the court excised the “arising under” language and held 1 that “[s]ection 1442(a)(1) provides a right of removal to federal court if a defendant proves 2 that [1] he is a federal officer, [2] his conduct underlying the suit was performed under 3 color of federal office, and [3] he has a ‘colorable’ federal defense.” State v. Meadows, 88 4 F.4th 1331, 1338 (11th Cir. 2023) (citing Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 5 1142 (11th Cir. 2017)). 6 Therefore, in accord with the Eleventh Circuit’s opinion, the Court holds that the 7 propriety of Mr. Meadows’s removal depends upon his satisfying the three-prong test urged 8 by the parties. In addition to satisfying the substantive dictates of § 1442(a)(1), 9 Mr. Meadows must also demonstrate compliance with the procedural requirements of 10 § 1455, which provides in relevant part that “[a] notice of removal of a criminal prosecution 11 shall be filed not later than 30 days after the arraignment in the State court, or at any time 12 before trial, whichever is earlier, except that for good cause shown the United States district 13 court may enter an order granting the defendant or defendants leave to file the notice at a 14 later time,” § 1455(b)(1). 15 The State presents two main arguments. First, the State contends that Mr. Meadows 16 filed his Notice of Removal after the thirty-day deadline contained in § 1455(b)(1) and that 17 he has failed to show good cause that might permit the Court to excuse the untimeliness. 18 Second, the State argues that Mr. Meadows has failed to meet the second criterion of the 19 substantive three-prong test because the conduct alleged in the indictment does not pertain 20 to Mr. Meadows’s role as President Trump’s former Chief of Staff. Thus, according to the 21 State, there is no causal nexus between its prosecution and Mr. Meadows’s federal 22 authority, thereby precluding a determination that this case is for or relating to any act taken 23 under color of office. The Court addresses each argument in turn.1
24 1 The State also presents, without expanding upon, an argument that Mr. Meadows is not a federal officer within the meaning of § 1442(a)(1) and thus fails the first prong of 25 the three-prong test. At various points throughout its Response, the State notes that the Eleventh Circuit recently held that § 1442(a)(1) applies only to current federal officers, not 26 former officers, see Meadows, 88 F.4th at 1338–43. (Response at 8, 17.) Although the State expressly contemplates that the Court here might align with the Eleventh Circuit and hold 27 that § 1442(a)(1) is inapplicable to Mr. Meadows as a former federal officer, the State does not actually present an analysis of why the Court ought to so find. Accordingly, although 28 the Court does not deem the State to have waived its first-prong argument, the Court elects to resolve this case on the two issues that were substantially briefed, namely whether 1 A. Untimeliness 2 The federal officer removal statute at issue provides in relevant part that 3 [a] notice of removal of a criminal prosecution shall be filed 4 not later than 30 days after the arraignment in the State court, 5 or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an 6 order granting the defendant [] leave to file the notice at a later 7 time. 8 28 U.S.C. § 1455(b)(1). The parties do not dispute Mr. Meadows filed his Notice of 9 Removal 48 days after the arraignment in Arizona state court and that the filing is thus 10 untimely by 18 days under § 1455(b)(1). But Mr. Meadows argues he had good cause to 11 file late, and in effect asks the Court to grant him leave nunc pro tunc for his late filing. 12 Mr. Meadows offers three arguments in support of a finding of good cause: 1) he delayed 13 filing the Notice in order to “pursue[] an effort to convince the State that it should not 14 pursue the charges against [him]” (Notice of Removal at 8); 2) he delayed filing while 15 awaiting the United States Supreme Court’s decision in Trump v. United States, 144 S. Ct. 16 2312 (2024), which he asserts bears upon his immunity defense in this matter (Notice of 17 Removal at 8); and 3) the Court should interpret the removal statute “broadly in favor of 18 removal” (Reply at 9). These arguments fail to persuade the Court. 19 While attempting to resolve a matter by mutual assent of the parties to avoid court 20 involvement is both laudable and sensible, parties universally face limitations periods and 21 deadlines in bringing actions, and they do not simply forego meeting those congressional- 22 or court-imposed deadlines to pursue settlement and then beg the mercy of the court if 23 settlement fails to materialize. That is to say, it is a well-trodden path familiar to all counsel 24 to pursue dual tracks in a representation, timely filing an action—or in this case, a notice 25 of removal—to protect their clients’ interests2 while they simultaneously pursue settlement.
26 Mr. Meadows had good cause for his untimeliness under § 1455(b)(1) and whether the charged conduct relates to acts taken under color of office pursuant to § 1442(a)(1). 27 2 Indeed, this is precisely what Mr. Meadows did in the Georgia removal matter 28 while represented by the same counsel. In that case, Mr. Meadows filed his notice of removal just two days after arraignment. 1 Alternatively, parties can and do seek tolling agreements. Here Mr. Meadows did neither, 2 despite one or both options being easily available. Mr. Meadows’s first purported reason 3 for failing to timely file his Notice does not present good cause. 4 Mr. Meadows’s second reason for missing the unambiguous deadline set forth in 5 § 1455(b)(1) fares no better. He asserts he waited to file his Notice of Removal because he 6 anticipated the Supreme Court’s ruling in Trump could bear on his immunity defense, and 7 upon its issuance, he argues, it does so bear. But again, that was no reason to miss the 8 deadline to file his Notice of Removal. Perhaps the Supreme Court’s holding in Trump 9 does strengthen Mr. Meadow’s claim and perhaps it does not—that question will remain 10 until it is taken up in the context of a possible motion to dismiss his case filed in the proper 11 forum. But the ultimate success or failure of Mr. Meadows’s federal defense need not have 12 been determined at the time he filed his Notice of Removal—he merely needed to be aware 13 of its existence as colorable. And he was aware of its existence—he in fact contemplated 14 raising immunity before the opinion in Trump issued.3 While Mr. Meadows might well 15 want to delay filing any motion to dismiss until he has had the opportunity to evaluate 16 Trump for its potential impact on his argument of the immunity defense, the filing of that 17 motion is—even now—still well in the future, and there was no need or reason to delay 18 filing the Notice itself. 19 Mr. Meadows does not appear to argue that his late filing was the equivalent of a 20 “second notice” of removal under § 1455(b)(2), nor could he. Although § 1455(b)(2) 21 provides that a defendant may file a second notice of removal “on grounds not existing at 22 the time of the original notice,” as the Court notes above, the proffered federal defense of 23 immunity was already extant from the commencement of the state criminal matter. While 24 Mr. Meadows believes Trump may strengthen his existing defense, it does not bring new 25 grounds into existence as required for a subsequent notice filing. The text of § 1455(b)(2) 26 also supports the Court’s conclusion that the publication of Trump does not constitute good
27 3 In response to the Court’s direct question at the evidentiary hearing, counsel for Mr. Meadows acknowledged he was not arguing that, but for the issuance of the opinion 28 in Trump, he would not have sought removal. (Doc. 20, Tr. 09/05/24 at 145:17-21.) 1 cause under § 1455(b)(1). If the Court were to countenance Mr. Meadows’s untimely filing 2 of his Notice of Removal simply because he suspected that a subsequent opinion might 3 strengthen his position, which is essentially what Mr. Meadows asks the Court to do here, 4 the Court would impermissibly render the second-notice provision of § 1455(b)(2) a 5 nullity. The existence of a filing deadline, in conjunction with an express statutory right to 6 file a second notice of removal “only on grounds not existing at the time of the original 7 notice,” indicates to the Court that Mr. Meadows’s voluntary delay in this case cannot 8 constitute good cause under § 1455(b)(1). A contrary conclusion would relegate the 9 second-notice provision of § 1455(b)(2) to the status of surplusage whenever a criminal 10 defendant could plausibly claim that a pending case might bear upon his potential removal 11 of the prosecution to federal court. 12 Finally, in his Reply, Mr. Meadows urges that despite his missing the filing deadline 13 by 18 days, the Court should nonetheless “heed the ‘clear command from both Congress 14 and the Supreme Court that when federal officers and their agents are seeking a federal 15 forum, [courts] are to interpret section 1442 broadly in favor of removal.’” (Reply at 9 16 (quoting Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006)).) And 17 the Court follows that command. But the “broad interpretation” of § 1442 Mr. Meadows 18 notes bears on evaluating the merits of the removal test. It does not mandate, or even 19 counsel, courts to throw out the statute’s deadline as set forth in § 1455. In support of his 20 argument, Mr. Meadows cites Durham v. Lockheed Martin Corp. That case proves the 21 Court’s point. The Ninth Circuit in Durham held that the 30-day filing deadline for federal 22 officer removal does not begin to run until the defendant in the state court matter receives 23 disclosure or notice from which he can determine federal officer removability is available. 24 445 F.3d at 1253. Durham does nothing to diminish the operation or effect of the statute’s 25 30-day deadline, and it does not, as Mr. Meadows suggests, teach that where federal officer 26 removal is available, in the name of broad interpretation courts simply should deem any 27 such case as constituting good cause. To do so would negate the 30-day limit altogether, 28 1 as every removal notice by a bona fide federal officer would upon filing—no matter its 2 timing—constitute “good cause” for extension. 3 The Court concludes Mr. Meadows has not shown good cause for leave to untimely 4 file his Notice. But even if good cause had existed, he has failed to demonstrate the offenses 5 charged in the state’s prosecution relate to his former color of office as Chief of Staff to 6 the President, as set forth immediately below. 7 B. Color of Office 8 The parties dispute whether the conduct charged by the State relates to acts taken 9 by Mr. Meadows under color of the office of Chief of Staff. A jurisdictional dispute of this 10 nature can take one of two forms: a “facial” attack or a “factual” attack. Leite v. Crane Co., 11 749 F.3d 1117, 1121 (9th Cir. 2014). A facial attack by the plaintiff accepts the truth of the 12 removing defendant’s factual assertions but maintains that they are insufficient to establish 13 federal jurisdiction. Id. In contrast, a factual attack contests the validity of the defendant’s 14 factual assertions undergirding the notice of removal. Id. The standards governing 15 resolution of these two different forms of opposition to removal under § 1442(a)(1) are 16 similar to the standards governing an ordinary objection to subject-matter jurisdiction 17 brought under Federal Rule of Civil Procedure 12(b)(1). Id. “Under that framework, where 18 the moving party does not contest the removal notice’s factual allegations but instead 19 asserts that those allegations are facially insufficient to invoke federal jurisdiction, we 20 accept the notice's factual allegations as true and draw all reasonable inferences in favor of 21 the remover.” Defiore, 85 F.4th at 552. When the plaintiff’s “motion to remand raises a 22 factual challenge by contesting the truth of the remover’s factual allegations, usually by 23 introducing evidence outside the pleadings, however, the remover must support her 24 jurisdictional allegations with competent proof under the same evidentiary standard that 25 governs in the summary judgment context.” Id. at 552–53 (cleaned up) (internal quotation 26 marks omitted). Thus, in a factual dispute, “[t]he remover ‘bears the burden of proving by 27 a preponderance of the evidence that each of the requirements for subject-matter 28 jurisdiction has been met.’” Id. at 553 (quoting Leite, 749 F.3d at 1121). The district court 1 resolves such factual disputes from the bench, except when the dispute is intertwined with 2 the merits of the case. See id. 3 At the evidentiary hearing, the Court asked both parties’ counsel whether this case 4 presents a facial or a factual dispute. The State answered that it has raised a factual dispute 5 to Mr. Meadows’s Notice of Removal, but Mr. Meadows disagreed and instead asserted 6 that the disagreement here is facial in nature. The Court agrees with the State on this point. 7 In its indictment, the State alleges that Mr. Meadows communicated with several 8 Republican operatives both inside and outside Arizona in furtherance of the “scheme” to 9 overturn the results of the 2020 election. Mr. Meadows incorporates these facts in his 10 Notice of Removal. Indeed, rather than make any additional or alternative factual assertions 11 to support his invocation of federal jurisdiction, Mr. Meadows simply quotes the State’s 12 indictment verbatim. (Notice of Removal at 4–6.) In particular, Mr. Meadows quotes the 13 State’s allegations that: Mr. Meadows “confided” to a White House staff member that 14 Trump had lost the election but that Mr. Meadows nevertheless wanted to continue 15 “fighting the election results” in order to “pull this off” for Trump; that Mr. Meadows 16 received texts from Kelli Ward (the chair of the Arizona Republican party and one of the 17 alleged “fake electors”) indicating that Ward felt that the Trump campaign’s lawyers in 18 Arizona were “afraid of being blackballed by the left” and were engaging in “a total cop 19 out”; that Rudy Giuliani, Ward and others contacted Mr. Meadows regarding overtures 20 they had made to the Maricopa County Board of Supervisors, including one such call from 21 President Trump to Clint Hickman, the chairman of the board of supervisors; and that the 22 Secretary of Energy, President Trump’s son, an Arizona Congressional representative, and 23 several others contacted Mr. Meadows with an “aggressive strategy” involving various 24 Republican-controlled state legislatures rejecting their states’ votes and instead opting to 25 send their own slate of electors to the electoral college, to which Mr. Meadows responded 26 “I love it.” (Notice of Removal at 4–6.) 27 28 1 In its Response and at the evidentiary hearing, the State introduced additional 2 evidence relating to the prosecution that:4 Mr. Meadows messaged an individual in Georgia 3 instructing him to explain to a second individual how the Republican elector strategy was 4 to unfold; that, after receiving complaints from Ward that their attorneys were freezing her 5 out, Mr. Meadows responded that he “will push them,” which he promptly did; that 6 Matt Schlapp (a lobbyist and chairman of the American Conservative Union) contacted 7 Mr. Meadows requesting an allocation of campaign funding to Nevada, a leader on the 8 ground, and twenty people to undertake the on-the-ground work, to which Mr. Meadows 9 responded “[m]oney has been allocated for Nevada. Tell me what you need. Just spoke to 10 Ronna [the chair of the Republican National Committee]”; that Mr. Meadows procured 11 Governor Ducey’s phone number so that Giuliani could reach him “about the election 12 results in Arizona”; that Mr. Meadows wrote to a senior Trump campaign official that 13 “[w]e just need to have someone coordinating the electors for states”; that Mr. Meadows, 14 in response to a text from Senator Mike Lee regarding the alleged fake-elector scheme, 15 responded “I am working on that as of yesterday”; that Mr. Meadows, in response to a 16 suggestion that Trump electors meet at state capitols to cast their votes, responded “[w]e 17 are”; and that Mr. Meadows texted Congressman Jim Jordan regarding the plan to have 18 Vice President Pence embrace the fake electors, “I have pushed for this. Not sure it is going 19 to happen.” (Response at 13–14; Doc. 15.) 20 Not only has Mr. Meadows not disputed any of the foregoing facts, but he has 21 necessarily relied upon them. Were it otherwise, Mr. Meadows’s Notice of Removal would 22 not contain any factual allegations supporting federal jurisdiction. Mr. Meadows asserts 23 that the State’s facts satisfy the jurisdictional requirements of § 1442(a)(1) because the 24 4 Mr. Meadows asserts that the State is impermissibly “sand-bag[ging]” him by 25 introducing factual allegations outside the indictment in order to illuminate the nature of its prosecution. (Reply at 6.) Notably, however, Mr. Meadows does not dispute these 26 factual allegations, nor does he offer contradictory factual allegations. In any event, parties in a jurisdictional dispute such as this are permitted to “introduce[] evidence outside the 27 pleadings.” See Defiore, 85 F.4th at 552–53. Indeed, it would be odd for § 1455(b)(5) to require an evidentiary hearing—a hearing which Mr. Meadows expressly requested, 28 (Notice of Removal at 3, 8–11)—if contemplation of evidence outside the indictment constituted sandbagging. 1 facts alleged by the State consist of, or at least relate to, acts taken under color of 2 Mr. Meadows’s federal office. In other words, this is not a case in which opposing parties 3 offer competing facts; rather, it is a case in which the parties offer competing 4 characterizations of identical facts. Thus, for the limited purpose of this jurisdictional 5 adjudication, the State and Mr. Meadows do not disagree as to what occurred, but instead 6 disagree as to whether what occurred pertained to Mr. Meadows’s official duties as Chief 7 of Staff. The dispute, therefore, turns upon the scope of a Chief of Staff’s official authority 8 and whether the charged conduct arguably falls within that scope of authority. In the Ninth 9 Circuit, “the scope and content of a [public employee’s] job responsibilities is a question 10 of fact.” Dahlia v. Rodriguez, 735 F.3d 1060, 1073 n.12 (9th Cir. 2013) (en banc) (quoting 11 Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1130 (9th Cir. 2008)) (noting 12 the existence of a circuit split on the issue of whether the scope of official duties presents 13 a question of fact or law).5 Therefore, because the contours of a Chief of Staff’s “color of 14 office” presents a question of fact, the Court concludes that the State’s opposition to 15 removal jurisdiction in this case constitutes a factual attack. Accordingly, Mr. Meadows, 16 as the removing party, bears the burden of proving by a preponderance of the evidence that 17 each of the jurisdictional requirements have been met. See Defiore, 85 F.4th at 553. 18 However, the Court’s placement of the burden of proof is immaterial because 19 Mr. Meadows would not prevail under any standard. 20 Mr. Meadows frames the Chief of Staff’s role as essentially the gatekeeper who 21 controls access to the President, the “filter for the President’s time and attention,” (Notice 22 of Removal at 2), and the key official in charge of “facilitating communication to and from 23 the President,” (Reply at 3–4). Although Mr. Meadows has adduced no evidence beyond 24 his own say-so supporting his description of the Chief of Staff’s official authority, the State 25 5 In concluding that the scope and content of a public employee’s job responsibilities 26 is a question of fact, Dahlia and related cases examined the issue in the context of § 1983 First Amendment retaliation claims brought by public employees against their employers. 27 See 735 F.3d at 1063, 1072. Although that scenario is distinct from the factual situation here, the Court finds the circumstances to be sufficiently analogous such that the holding 28 in Dahlia is persuasive, particularly in light of the apparent dearth of positive law defining the role of a President’s Chief of Staff. 1 has not offered a competing construction. Therefore, the Court credits Mr. Meadows’s 2 assertion regarding the Chief of Staff’s scope of office. However, this conclusion is 3 unavailing to Mr. Meadows because his vision of the Chief of Staff’s color of office does 4 not correspond to the facts of this case. In arguing that the charged conduct falls under 5 color of his former federal office, Mr. Meadows contends that the State has done no more 6 than allege that he “received (and occasionally responded to) messages from people who 7 were trying to get ideas in front of President Trump or seeking to inform Mr. Meadows 8 about the strategy and status of various legal efforts by the President’s campaign.” (Notice 9 of Removal at 2.) Mr. Meadows asserts that “[t]he senders were seeking to get their 10 message to the President through Mr. Meadows, to persuade the President’s closest senior 11 advisor, or simply to keep Mr. Meadows apprised of what was happening.” (Notice of 12 Removal at 7.) And, according to Mr. Meadows, “fielding that sort of incoming [sic] from 13 people who want the President’s attention or to influence his decision-making is squarely 14 within the Chief of Staff’s responsibilities.” (Notice of Removal at 7.) Thus, 15 Mr. Meadows’s core contention, and the object of the State’s jurisdictional attack, is “that 16 his charged conduct—essentially, facilitating communication to and from the President 17 related to the 2020 Election—was within the scope of his official duties.” (Reply at 3–4.) 18 Mr. Meadows has not so much removed the State’s indictment as rewritten it. 19 Contrary to Mr. Meadows’s assertions, the State has not indicted Mr. Meadows for merely 20 facilitating communication to and from the President or for simply staying abreast of 21 campaign goings-on. Instead, the State has indicted Mr. Meadows for allegedly 22 orchestrating and participating in an illegal electioneering scheme. Few, if any, of the 23 State’s factual allegations even resemble the secretarial duties that Mr. Meadows maintains 24 are the subject of the indictment. None of the factual allegations at issue here mention 25 management of the President’s time or facilitation of communication to and from the 26 President, much less that any such time management or communication facilitation 27 constitutes the charged conduct in this case. Similarly, contrary to Mr. Meadows’s 28 reframing of the indictment, he is not being prosecuted for receiving text messages 1 intended to simply keep him “apprised of what was happening” with the Trump campaign. 2 As already noted, the indictment has charged Mr. Meadows with “coordinat[ing] and 3 implement[ing] the false Republican electors’ votes in Arizona,” not merely staying 4 informed of the alleged scheme. (Indictment at 21.) To allow Mr. Meadows to 5 recharacterize the State’s indictment at the level of generality that he seeks to do would be 6 to vitiate both the federal officer removal statute and the Supreme Court precedent 7 interpreting that statute, as every criminal prosecution of a federal officer will in some 8 vague sense involve that officer’s staying “apprised of what is happening.” Federal 9 jurisdiction cannot turn upon amorphous generalities that will be present in all instances. 10 Moreover, regardless of the extent to which any individual factual allegation might 11 tenuously relate to Mr. Meadows’s official duty to facilitate communication to and from 12 the President, the Court agrees with the Eleventh Circuit’s conclusion that “an accused's 13 removal theory must accord with a claim—a criminal charge—brought against him.” 14 Meadows, 88 F.4th at 1344. Therefore, it is the “heart of the indictment” that matters. Id. 15 “To allow Meadows to remove the action if any single allegation in the indictment related 16 to his official duties would run contrary to both the removal statute and precedent.” Id. at 17 1345. 18 Thus, Mr. Meadows’s legal contention that Supreme Court caselaw requires this 19 Court to “credit [Mr. Meadows’s] theory of the case” rings hollow. (See Reply at 4 (quoting 20 Acker, 527 U.S. at 432).) The Court rejects removal here not because there is a problem 21 with Mr. Meadows’s “theory of the case,” but instead because there is a fundamental 22 misalignment between Mr. Meadows’s legal theory and the facts undergirding the State’s 23 prosecution.6 In past cases, the Supreme Court has upheld removal where “the federal 24 officer’s ‘relationship to [the plaintiff] derived solely from their official duties.’” See 25 Osborn v. Haley, 549 U.S. 225, 249 (2007) (quoting Willingham v. Morgan, 395 U.S. 402,
26 6 To be clear, in apparent contrast to his argument before the Eleventh Circuit, Mr. Meadows does not contend that the Chief of Staff bears any responsibility for the 27 supervision of state elections. Cf. Meadows, 88 F.4th at 1346. The Court therefore does not address the Elections Clause, the Take Care clause, or any other source of potential state- 28 election authority for federal officers. || 409 (1969)). Here, however, the State’s charged conduct is unrelated to Mr. Meadows’s official duties. Although the Court credits Mr. Meadows’s theory that the Chief of Staff is || responsible for acting as the President’s gatekeeper, that conclusion does not create a causal nexus between Mr. Meadows’s official authority and the charged conduct.’ Therefore, 5 || because the Court concludes that the conduct charged in the State’s prosecution does not 6|| relate to Mr. Meadows’s color of former office, the Court must remand this case to state court for want of subject-matter jurisdiction. 8 For the reasons set forth above, 9 IT IS ORDERED declining to assume jurisdiction over the State of Arizona’s || criminal prosecution of Mr. Meadows under 28 U.S.C. §§ 1442 and 1455. 11 IT IS FURTHER ORDERED discharging the Notice of Removal (Doc. 1) and || remanding this matter to the Superior Court of Arizona in and for Maricopa County. 13 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter. 14 Dated this 16th day of September, 2024. CN 15 i, . 16 Hon le Joff J. Tuchi Unifga StatesDistrict Judge 17 18 19 20 21 7 One minor contention in Mr. Meadows’s Reply is emblematic of this point. Mr. 22|| Meadows asserts that Special Counsel Jack Smith alleged in a separate case that “Mr. Meadows participated because, as “Chief of Staff, . . . [he] sometimes handled i private and 23 Campaign-related logistics for [the President].’” (Reply at 5 (quoting uperseding Indictment at 13 §[33, United States v. Trump, (No. 23-cr-257 ECF No. 226)).) That 24 representation, made by way of artful alteration of the Special Counsel’s wording, is not accurate. The Special Counsel did not allege that Mr. Meadows handled private or 25 campaign-relate affairs as Chief of Staff. Instead, the Special Counsel simply noted that “the Defendant [President Trump], his Chief of Staff—who sometimes handled private and 26 Campaign-related logistics for the Defendant—and private attorneys . . . called the Secretary of State.” Superseding Indictment at 13 | 33. In other words, the Special Counsel 27 merely alleged that Mr. Meadows, who happened to occupy the office of Chief of Staff, undertook certain private actions. The Special Counsel did not insinuate that all actions | taken by Mr. Meadows during his tenure as Chief of Staff are ipso facto official actions under color of office.
-15-