Former President Donald Trump may attempt to have his latest criminal indictment moved from a state court to a federal court. But where there are advantages, there are also challenges, according to legal analyst David Gelman.
Fulton County District Attorney Fani Willis has successfully urged a grand jury to charge President Trump and several co-defendants with allegations of lawbreaking in connection with his attempts to dispute the 2020 election results. Former White House Chief of Staff Mark Meadows, who was also charged in the 98-page indictment, has already requested to have the Fulton County charges moved to a federal court, citing a federal law that allows individuals who were federal officeholders at the time of an alleged criminal act to have the case go before a federal court.
Two additional co-defendants in the Georgia case have since made similar requests to have their charges decided in a federal court and Mr. Trump’s legal team has indicated he may pursue the same procedural defense maneuver. If he is elected back to the White House, President Trump can pardon federal convictions—including potentially including his own—but he has no such power for state-level offenses like the kind Ms. Willis has leveled at him. One of President Trump’s attorneys, Alina Habba, directly raised that concern as she hinted that her client may push to have his charges brought to a federal court.
But Mr. Gelman explained, “There are pros and cons to doing it that way.” He told NTD News’ ‘Capitol Report’ on Tuesday that he doesn’t believe President Trump can get a very fair trial in Fulton County, “so I do think a change of venue is necessary regardless of if it’s going to go to the federal courts or the state courts.”
The prosecutor-turned-defense lawyer, who served as the assistant county prosecutor in Burlington County, New Jersey for about four years before launching his own criminal defense practice in 2017, voiced concerns about whether the former president would be getting a fair trial due to concerns about how Fulton County officials are publicizing the case, including talks of staging the former president for a mugshot.
“It seems to me that the Fulton County DA’s office is really trying to get as much media coverage as possible,” he said. “They want to make a spectacle of this. You know, it’s not every day you’re going to have the president or former president of the United States coming to their courthouse. So they’re going to try to do everything to maximize their coverage and make their case for them.”
Mr. Gelman said relocating the Fulton County indictment to a federal court could make a case take longer. That aspect of the federal relocation move could prove attractive for President Trump, as he and his team have sought to push his trial dates beyond 2024 after the next presidential election.
Challenges for Federal Relocation
A move to a federal court may bring the case to a more favorable venue for the former president, and a delay could allow him time to regain pardon powers. But he could be challenged to demonstrate that he was acting in his official capacity as the president while carrying out the actions for which Ms. Willis is now criminally charging him.
“There’s certain rules that need to apply in the event it is set up there,” Mr. Gelman explained. “So these allegations that are against the president, were they being done while he was the commander in chief, or were they done while he was in campaign mode? The statute provides that it can be brought up to the federal system in the event that you are acting in a federal capacity. So these are all questions that are going to have to be answered before they can make a decision on whether it’s going to be going to the federal court, or in the event of just a change of venue in general.”
Mr. Gelman said that President Trump’s legal team likely hasn’t made the motion to move the Fulton case to a federal court because he wants to see how the motion plays out for other defendants.
Hunter Biden May Get New Charges
Pivoting to another prosecution with political implications, Mr. Gelman predicted that President Joe Biden’s son, Hunter Biden, may face new criminal charges after a recent criminal plea deal fell through and U.S. Attorney David Weiss was granted special counsel powers in the investigation.
Mr. Gelman noted that Republican investigators have also honed in on certain instances of communication between the elder and younger Biden as Hunter Biden pursued business deals around the world.
“It seems to me that Congress has really clamped down on a lot of these communications,” he said.
The defense attorney raised concern that the communications uncovered by Republicans give the appearance that Hunter Biden was exploiting his relationship with his father to advance those international business interests.
“So I could definitely see they’re going to have a lot of issues. And now with the Special Counsel David Weiss allegedly having more free rein, I think they have no choice but to bring more charges to Hunter Biden,” he continued.
Hunter Biden had been prepared to plead guilty to two tax charges and enter a pretrial diversion program that could see a federal gun possession charge dismissed. He ultimately pled “not guilty” last month after the deal arranged with Mr. Weiss unraveled under scrutiny from U.S. District Judge Maryellen Noreika.
Attorney General Merrick Garland subsequently granted Mr. Weiss special counsel authority and Judge Noreika granted his request to dismiss his prior charges against Hunter Biden, as his prosecuting authority expanded.
While Mr. Weiss may be able to bring stronger charges against Hunter Biden now that he has special counsel authorities, some Republicans have expressed doubts about his commitment to actually pursue a strong case.