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Nearly every former prosecutor I know predicted Mark Meadows on Monday would not take the stand at his hearing to move his Georgia election interference case to federal court. The risks to him during cross-examination would simply be too great, they agreed. And I’m not a former prosecutor, but I shared the opinion that it would be madness for the former Trump White House chief of staff to testify.
Together, we were all wrong.
That a lawyer as experienced as George Terwilliger — a former deputy attorney general and former acting attorney general during the George H.W. Bush administration — allowed his client to take the stand tells you two things.
First, Meadows and his team believe moving his case to federal court is so critical that it’s worth the risk of his being cross-examined.
Second, Meadows’ team concluded his testimony was the only way to meet his burden of proof that he had been acting as a federal officer (and, therefore, should have his case moved to federal court). And that means Meadows’ team was either unable to convince any of his allies with firsthand knowledge of his activities and/or Donald Trump’s directives to take the stand for him, or no such witnesses exist because of the secrecy with which Trump and Meadows operated. Either one is not a good look.
Given the risks — and we’ve seen public reporting about Meadows’ cross-examination by prosecutor Anna Cross — it’s a good time to ask why being in federal court matters so much to Meadows in the first place.
Yes, the jury pool for the federal district court in Atlanta draws from several counties, not just one, and that could benefit Meadows. It’s also true that a federal proceeding might move more slowly than a state one. But neither of those factors is likely what’s motivating Meadows.
I tend to think legal commentator Harry Litman, a former U.S. attorney, has this just right: Meadows wants to be in federal court because his best chance of escaping the charges entirely is through a judge, not a jury. Specifically, it’s by arguing before a federal judge well-versed in (and perhaps parochial about) federal constitutional law that, as a federal officer, Meadows is entitled to immunity from state prosecution under the supremacy clause of the Constitution.
But being able to make that motion in federal court necessitates first removing his case from its state counterpart. The problem for Meadows is that, as a matter of law, the immunity issue overlaps substantially with the threshold issue on removal itself: whether he was acting under federal law or as a federal officer versus whether he was freelancing for Trump’s campaign.
Meadows was on the stand for nearly four hours on Monday; a docketed witness list also reflects he was his own only witness. But notwithstanding Meadows’ willingness to bet on his own testimony, I’m not expecting it to pay off, either in the district court or even on appeal. Stay tuned, though, to find out how it all turns out.
CORRECTION (Sept. 6, 2023, 7:15 a.m. ET): A previous version of this article misstated George Terwilliger's professional background. He served as a former deputy attorney general and former acting attorney general during the George H.W. Bush administration. He was not a former U.S. attorney in the Eastern District of Virginia.