Experts: Trump gambit to move Fulton case to federal court may actually work — but there's a catch

Former President Donald Trump and 18 allies in Georgia were formally charged under a statute typically linked to organized crime in connection with their actions aimed at overturning the 2020 election results in the state. 

Fulton County District Attorney Fani Willis brought the charges Monday night after a two-and-a-half-year criminal investigation into the efforts by Trump and his allies to overturn President Joe Biden's victory in Georgia's 2020 presidential election.

Prosecutors have alleged that the ex-president, along with lawyers and other aides, engaged in a "criminal enterprise" with the intention of maintaining his hold on power. Willis, who has a track record of relying on Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act throughout her career, used the statute to combine several alleged crimes into one racketeering charge that carries up to 20 years in prison.

"Using RICO allows the government to piece together a mosaic of conduct by many different people in different places and times that altogether amounts to a crime," Nathan Chapman, a professor of law at the University of Georgia, told Salon. "The fact that it was developed for organized crime, and it is charged here, may suggest to some people that the alleged crimes are 'like' those committed by the mob or a drug ring. I would expect Trump's political opponents to make hay out of that."

Two years ago, Willis enlisted the expertise of John Floyd, an experienced attorney who authored the book on Georgia state RICO laws, to aid in the investigation related to Trump, according to ABC News. This move provided insight into her potential approach to handling the case.

"RICO is a hugely important statute in Georgia," Eric Segall, the Kathy & Lawrence Ashe Professor of Law at Georgia State University, told Salon. "It carries a minimum sentence of five years. It's inconceivable to me that this case will go to trial because it's inconceivable to me that Trump would roll that dice if it gets there."

The most important thing is whether the former president can "remove" the Georgia case to federal court, Segall added. 

The "removal statute" refers to a legal provision that allows any "officer of the United States" to remove a case from a state court to a federal court if the case arises from their official responsibilities. 

This typically happens when the case involves federal law or when parties from different states are involved, and the defendant believes they would have a fairer trial in a federal court. 

In order to move the case, Trump would have to satisfy specific conditions. He would have to be considered a "federal officer," who was performing his "official duties" and took actions within "the color of his office."

"Colorable federal defense" and engaging in "official duties" are defined "incredibly broadly," and can provide validity to Trump's argument, Segall said.

Even though the most recent indictment was filed in state court in Fulton County, Ga., Trump is expected to try and "remove" the case to federal court, where he is likely to encounter a friendlier jury pool and a judge he appointed to the bench.

"Most importantly, there's a good chance he can get the charges dismissed," Segall said. 

Trump, who is running again for president in the 2024 election, has now been indicted in four separate criminal investigations this year. Earlier this month, the ex-president was indicted over his attempts to remain in the White House after losing the 2020 election. 

Now, after his most recent indictment, Trump may rely on a familiar tactic he used after being charged for falsifying business records to cover up an affair with adult film star Stormy Daniels.

Trump argued that the payments to Daniels in 2016 were connected to his duties and that the case should therefore be shifted to federal court. 

"The judge correctly said that 'you don't get to take this case to federal court because paying Stormy Daniels hush money cannot be an official act of the president's. There's nothing government about that,'" Segall said. 

Within the context of Georgia, Trump could potentially assert that, in his role as the president of the United States, his efforts were aimed at ensuring the integrity and fairness of the federal election process, he added. 

"We know that wasn't his motivation," Segall continued. "His motivation was he hated losing."

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But states can't criminalize the official duties of federal officials. Federal law is supreme and the issue ultimately comes down to which judge gets to decide the case, Segall said.

The nearly 100-page indictment outlines several instances in which Trump or his allies tried to reverse his election loss. Their actions include urging Georgia's secretary of state to find enough votes for him to win the battleground state, subjecting an election worker to harassment based on baseless fraud allegations, organizing fake slates of electors and even breaching sensitive election equipment machines in Coffee County, Ga.

The 41-count indictment brings charges against some of Trump's most trusted advisers and key allies, including his former personal lawyer Rudy Giuliani, White House Chief of Staff Mark Meadows and attorneys John Eastman, Sidney Powell, Jeff Clark, Ken Chesebro and Jenna Ellis.

Willis has said the defendants have until noon Friday, Aug. 25, to surrender to Georgia authorities. She also said she plans to seek a trial date within six months and that she intends to try the defendants collectively.

"Do not expect a trial in Georgia anytime in the near future," Segall said. "I know she said six months. I'm here to tell you there's almost no chance."

He pointed to the possibility of some of the 18 defendants, who were charged alongside Trump, flipping and testifying against the former president, which would add more time. 

But if Trump tries to remove his case to federal court, this would further slow down the timeline. 

"We have a defendant being charged in four different jurisdictions in some very complicated cases," Segall said. "As reprehensible as Donald Trump is, he has a constitutional right to due process of law and he has a constitutional right to be treated like other defendants." 

The scheduling issues around all four of the indictments Trump is facing are going to be "complex" and "difficult" to navigate, he added. But in order to "intellectually and honestly" analyze these cases, "we've got to take Trump's awfulness out of the equation and ask how do we want future presidents to be treated?"

Some precedents can be set here although it's "very bad" to set legal precedents, he added.

"You know, they say hard cases make bad law," Segall said. "Well, hard constitutional cases involving the president of the United States can make very bad law."