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Hi, I'm Neil Katyal, and thanks for

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listening to this emergency episode of Courtside.

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Today I want to go through what you all are

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asking me about online, which

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are three of Donald Trump's strategies

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to try and get out of the Georgia indictment.

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The three are, number one, a presidential

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pardon.

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Two,

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the use of the Georgia statute that

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allows for the ousting of the local

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prosecutors, including Vonnie

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Willis. And third, removal

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from the state court to a

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different court, the federal court. Here's

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the bottom line. I think all three are

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going to fail. Let's go through them. The

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first, can Donald Trump or

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a future president who's a Republican

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pardon Donald Trump for the Georgia

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offenses? The answer is clearly

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no. Our United States Constitution

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limits the pardon power to only

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federal offenses, so state

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crimes don't count. What this means

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is that Jack Smith, who's the federal

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special counsel, his

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charges could go away in the event

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of a Republican win in 2024,

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but it would leave the Georgia charges entirely

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intact. Number

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two, there are questions about

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this new law that Georgia has enacted

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that allows for the removal of local

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prosecutors for malfeasance. This

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is actually a strategy that Governor DeSantis

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in Florida just used last week

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to remove a local district attorney.

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But Georgia is different. It's not the

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governor says so to oust a

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district attorney. Rather, the law

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creates an eight-member board to

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review prosecutors, and those

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members are appointed by the governor. Here,

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however, the governor has already come

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out rejecting Donald Trump's

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cockamamie claims about the 2020 election.

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Governor Brian Kemp tweeted yesterday

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in response to a Trump message saying

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the election was rigged and he said quote,

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the 2020 election in Georgia was not stolen

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for nearly three years now. Anyone

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with evidence of fraud has failed to come forward

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under oath and prove anything in

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a court of law. Our elections in Georgia

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are secure, accessible and fair and

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will continue to be so as long as I'm

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governor. The future of our country is at stake

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in 2024 and that must be our focus."

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end quote.

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That is a very powerful statement

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and I think it puts to rest the concerns

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that many have issued saying,

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well,

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the governor is going to nullify this prosecution.

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And the third and final

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strategy that is being mentioned is

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the use of the federal removal statute.

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So there's a federal law, 28 USC 1442,

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that allows for the removal

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of criminal cases from state court to

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federal court. And Donald Trump,

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of course, really wants to remove his

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trial from state court to federal

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because federal trials aren't televised

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absent in order from the chief justice

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and the judicial conference. And

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Georgia, by contrast, televises criminal

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trials. We know that Donald Trump

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is afraid of sunlight in

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just the same way as a vampire is afraid

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of sunlight and, I guess, garlic. So

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we can expect Trump to try and remove

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the case. Mark Meadows, as chief of staff,

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has already tried as well. Now

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removal, if it were successful,

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would mean some different things, not just cameras

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in the televised nature of the trial. It

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would also mean

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that there's a different jury panel

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because it wouldn't just be jurors drawn from Fulton

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County, but a broader cross-section

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of Atlanta and the surrounding areas. Here's

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what it doesn't mean, even if Trump were successful,

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which I don't think he will be, as I'll explain

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in a moment. It doesn't mean that

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a Republican president, whether

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Trump or someone else in 2024 and 2025, can pardon Donald Trump.

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All the removal does is change

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the venue to the federal court. It

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is still a state prosecution

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about state law and thus ineligible

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for the use of the federal pardon power.

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Now, why

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can't he remove the case? I

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think there are three reasons. One,

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the

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statute section 1442 says, and

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I'll just give it to you, a criminal prosecution

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that is commenced in a state court and

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that is against or directed to the United

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States or any officer of

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the United States or of any agency

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thereof in an official or

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individual capacity for

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or relating to any act under color

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of such office or an account of any

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right title or authority claimed under any

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act of Congress. Those are the people

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that can seek removal.

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That does not apply here.

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The Constitution expressly

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excludes the precedent from anything

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to do with the electoral college. Our

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founders gave the president sweeping

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powers in all sorts of areas, but

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there's one place notably they did not,

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and that's the electoral college. And

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for very good reason, there's

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probably no one in the country, there is no one

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in the country who has a bigger self-interest

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in the electoral college, how it operates,

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how votes are counted and the like, than

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a sitting president who after all is

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often running for reelection as Donald

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Trump was. And for that reason,

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the Constitution excludes presidents,

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sitting presidents from anything to do

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with the electoral college. So he could

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not have been acting in an official or

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individual capacity

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for any act under

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color of such office because

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such office excludes the electoral

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college. Second,

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there also has to be some colorable

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federal defense, something like

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absolute immunity or something like that

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president. Those claims have already

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been squarely rejected

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in case after case and I see

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them going nowhere. And finally

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the Supreme Court has said that

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in order to invoke the removal statute

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you can't just

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do it willy-nilly. It has to be something

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that doesn't burden the states and the local

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officials too much. Here it

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certainly would burden all of those

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officials.

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If you're interested in this Don

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Ayer and Lawrence Tribe along

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with another co-author have

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written a very powerful piece in the Atlantic

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that goes through these arguments and

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I commend it to you for anyone interested

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in this subject. So thanks

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for listening to Courtside. As you might know

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this week I have a terrific episode

6:47

with Aaron Desner of the band The National.

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He's a phenomenal singer-songwriter

6:53

and he is talking

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about copyright law, artificial intelligence,

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and a really important Supreme Court case about

7:01

music and copyright.

7:02

So please tune

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in.