Republican Judges Deny Trump Co-Defendants’ Request

Two Republican judges denied a request from former President Donald Trump’s co-defendants in the Fulton County, Georgia election interference case.

The 11th Circuit Court of Appeals on Thursday rejected an effort from former Georgia GOP Chair David Shafer, state Senator Shawn Still and former Coffee County GOP Chair Cathleen Latham to move their cases to federal court.

The 3-0 decision came from a three-judge panel on the appeal court, including Chief Judge William Pryor, Circuit Judge Robin Rosenbaum and Circuit Judge Britt Grant. Pryor and Grant were both appointed by Republican presidents—George W. Bush and Trump, respectively—while Rosenbaum was appointed by Democratic President Barack Obama. Grant’s name was also floated as a potential Supreme Court pick for Trump.

“Shafer, Still, and Latham argue that as nominated presidential electors for the 2020 election, they were federal officers acting pursuant to constitutional and federal authority and are entitled to remove,” the panel said. “We disagree.”

Federal officials are entitled to move courts if they are being prosecuted for acts that were committed in carrying out their federal duties. In the court’s decision, the judges said the question before them was not whether the three co-defendants were federal officers, but whether or not they are still current officers.

“Even if Shafer, Still, and Latham were federal officers in 2020 when they were nominated to the Republican slate of electors, they would not be current federal officers,” the ruling read.

The decision is not without precedent. The appeals court cited the earlier ruling in former Trump White House Chief of Staff Mark Meadows’ case that prohibited from moving the case to federal court. Meadows, who is also among the 19 co-defendants in the Fulton County case, is appealing the decision to the Supreme Court. The justices are scheduled to discuss whether or not to hear arguments in Meadows’ case next month.

Grant wrote a concurring opinion on Thursday to express that while she agreed that Shafer, Still, and Latham could not move their case because of the decision in Meadows’ case, she found the earlier ruling to be “incorrect.”

“Rather than declaring that Mr. Shafer is ineligible for federal officer removal because he is no longer (even arguably) a federal officer, I think the better course would be to consider the merits of the district court’s thoughtful conclusion that he was not ever a federal officer,” Grant wrote. “The same is true for the other defendants. But because our Court’s precedent demands otherwise, I respectfully concur.”

Rosenbaum penned her own concurring opinion arguing that while she agreed with the decision, she believed their arguments fail for “two even more fundamental reasons than that.”

“First, under the Constitution, federal law, and the laws of Georgia, Defendants were not 2020 presidential Electors, no matter the modifiers they add to the title. The people of Georgia did not vote for them to be Electors,” Rosenbaum wrote.

“Second, even lawful presidential Electors are not officers of the United States under the federal-officer removal statute. States—not the federal government—directly appoint Electors. And Electors never assume functions on behalf of the whole United States,” she said.

In her conclusion, Rosenbaum said the federal officer removal statute requires a defendant to be a federal officer, but the three in this case “are triply not.”

“They are not currently officers. They are not Georgia presidential Electors for
the 2020 election. And even if they were, presidential Electors are not federal officers,” she said.