Mark Meadows' attempt at removing his prosecution from Georgia state courts to federal court has highlighted another example of Republican hypocrisy regarding interpretation of the law. The appeals court hearing his motion to remove issued a question to both Fani Willis and Meadows' attorney aking each side to state their opinion on a crucial legal question regarding the statute Meadows is citing in his request for removal... Does that statute permit former federal officers to remove state actions to federal court or does it permit only current federal officers to remove?
If the law is is not restricted to CURRENT federal officials, that would help Meadows' argument for removal. If the law is interpreted as ONLY applying to current officials, it renders Meadows' motion moot and he remains in state court.
So what is the language of the actual law? The text can be reviewed here: https://www.law.cornell.edu/uscode/text/28/1442
The core of the language is:
28 U.S. Code § 1442 - Federal officers or agencies sued or prosecuted
(a)A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1)The United States or any agency thereof or any officer (or any 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 under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
(other particulars not applying to Meadows omitted for brevity...)
(b)A personal action commenced in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State, wherein jurisdiction is obtained by the State court by personal service of process, may be removed by the defendant to the district court of the United States for the district and division in which the defendant was served with process.
Note that the language of (a) EXPLICITLY references civil action or criminal prosecution. Note that category (1) of applicable individuals uses the CURRENT TENSE verb acting.
Those distinctions were highlighted by Fani Willis and team in their written response to the appeals court. In a nutshell, they directed the court to compare the language in (a) versus (b) and note that article (b) EXPLICITLY references or at the time when the alleged action accrued was. Their briefing then states:
This Court should recognize that the discrepancy in the language used by Congress in drafting and enacting these two subsections of the same statute was intentional, and Section 1442(a)(1), properly interpreted, cannot authorize removal of a state criminal prosecution against a former federal officer.
Where "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983). And "[t]he interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force" when the disparate statutory provisions are "in close proximity" to one another. Dep't of Homeland Sec. v. MacLean, 574 U.S. 383, 392 (2015) (emphasis added).
Obviously, Meadows submitted a different interpretation, stating words to the effect that, clearly, the law requires contextual interpretation for each circumstance and his circumstance warrants removal. He's essentially arguing judges making this decision should have wide lattitude in which to decide this issue, despite the actual language of the law making no explicit grant of this right to FORMER officials regarding civil/criminal cases filed by state actors while explicitly DOING SO four paragraphs later in the same law regarding actions initiated by external aliens. That's not an accident, that's the INTENT of Congress, which requires no free-lance re-interpretation of a judge on a case by case basis.
It's amazing how quickly conservatives jettison thirty years of psuedo-intellectual religion regarding originalist theories of legal precedent when the noose is around their neck and they are desperately trying to escape justice.
WTH
