Imagine the unbridled joy in liberal-media land if and when some prosecutor, somewhere, indicts Donald Trump. The celebration of Kansas City Chiefs fans over their team’s Super Bowl victory could pale in comparison.
On her MSNBC show Saturday morning, Katie Phang boldly predicted that Fulton County, Georgia DA Fani Willis will indict Trump. Or maybe this isn’t too bold, since CNN and MSNBC have been predicting and wishing and hoping for the “walls closing in” on Trump since 2017.
Willis has been investigating Trump in connection with his efforts –notably including a phone conservation he had with Georgia Secretary of State Brad Raffensperger — to overturn the results of the 2020 presidential election in Georgia.
Phang’s only concern was in regard to a possible abundance of riches — whether Willis’s indictment of Trump could “coexist” should special counsel Jack Smith indict Trump on federal charges. Phang predicted that whereas Willis would be the first prosecutor to indict Trump, she foresaw Smith also indicting Trump, with his first indictment coming in regard to classified documents at Mar-a-Lago.
Former US attorney and MSNBC legal analyst Joyce Vance assured Phang that state and federal indictments could indeed coexist, although some coordination among the respective judges would be required.
At the end of the segment, Phang asked Vance and Hugh Lowell of The Guardian whether they agreed with her prediction that Willis will indict Trump. Lowell gave a flat “yes.” Vance coyly countered, “maybe.”
Note: Vance mentioned a “little-known statute” that would permit Trump to have an indictment by Willis moved from a Fulton County state court to a federal court in the Northern District of Georgia. She said the Northern District is a little or “maybe a lot more conservative than” than Fulton County, home to Atlanta.
Vance didn’t cite the statute to which she alluded, but it would appear to be 28 U.S. Code § 1442 (a)(1), which provides [emphasis added]:
(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.
Could Trump could rely on such a statute? He was certainly a federal officer at the time of the alleged crime — his effort to overturn the result of the presidential election in Georgia. But he would no longer be a federal officer at the time of indictment. The statute would also require Trump to demonstrate that the act in question was “under color of such office,” something you could imagine that Willis would contest.
On her MSNBC show, Katie Phang predicting that Fulton County, Georgia DA Fani Willis will indict Donald Trump was sponsored in part by T-Mobile, Subway, Chase, and Amazon.
Here’s the transcript.
MSNBC
The Katie Phang Show
2/18/23
8:20 am ETKATIE PHANG: Joyce, I want to end with you. My question is—I predict the Fulton County DA, Fani Willis, indicts Donald Trump. Whether you end up getting a conviction, that’s left to be seen, right?
Is there an issue vis-à-vis jurisdiction? If you get an indictment for Donald Trump by Fulton County DA Fani Willis, and Jack Smith tees up an indictment, which I think is going to be first, and Hugo, we talked about this, Mar-a-Lago. We think Mar-a-Lago docs case is going to be the one that’s going to be the first up by Jack Smith.
Is there a concern that they can’t coexist? These two indictments can’t travel at the same time, in any way?
JOYCE VANCE: There’s no concern that they can’t coexist at the same time. There are cases where you see defendants indicted by multiple jurisdiction. There’s some procedural issues, where judges have to consult with each other on the timing. There are questions about when a defendant goes into custody pretrial, which jurisdiction will take that defendant into trial. But those are situations that the legal system is well-accustomed to dealing with. I don’t see that as a problem.
There’s an interesting twist though, Katie. There’s a little-known statute that permits a federal official who’s indicted in state court to remove that indictment into the federal court. That here would be the Northern District of Georgia. That would be a strategic consideration for the former president. Which jury would you rather have? Fulton County, or the Northern District of Georgia, which is a large jurisdiction that leans a little bit more conservative, maybe a lot more conservative than the county does, if you think political beliefs influence jury outcomes.
So it’s possible we could end up seeing, to some extent, federal involvement in both of those cases. This is the kind of strategy that Trump likes to pursue. He likes anything that injects uncertainty and delay in the proceedings. And the removal in the federal court would certainly accomplish that goal here.
PHANG: One word answer from you, Hugo, and then to Joyce. Do you agree Fulton County DA comes up first for an indictment on Donald Trump?
HUGH LOWELL: Yes.
PHANG: Joyce?
VANCE: [Smiles coyly] Maybe.
PHANG: Ugh! Spoken like a true lawyer.