Thread by @AnthonyMKreis

Yesterday, the Court of Appeals for the 11th Circuit in Atlanta issued an en banc ruling in US v. Pate, which could have potential ramifications for removal proceedings in Georgia v. Trump et al. or minimally offers insight to the judges' thinking. #gapolmedia.ca11.uscourts.gov/opinions/pub/f…

Pate who says he's the “heir to the kingdom of Morocco,” filed liens against property owned by individuals Pate thought wronged him including a former IRS Commissioner and a former Treasury Secretary. Pate was charged under 18 U.S.C. § 1521, which criminalizes retaliatory liens.

However, retaliatory liens are unlawful when made against persons included under 18 U.S.C. § 1114. So, who are those people? "[A]ny officer or employee of the United States... while such officer or employee is engaged in or on account of the performance of official duties..."

Sounds a bit like the removal statute, *though to be clear* there are meaningful differences in the statutory text. The left image is the removal statute, 1442, and the right is the statute incorporated in the liens law, 1114.

In Pate, the government argued the retaliatory liens were unlawful because federal law's usage of "on account of the performance of official duties" means former federal officials are protected against these bad liens when the motivation is their past status as federal officials.

The 11th Cir said, "no." When Pate filed the retaliatory liens against the property, the owners were not in federal service. The court rejected that the statute's language means the inquiry should be about *why* the lien was filed. Rather, the key question is *when* it was filed.

Similar questions arise in the removal statute. One part of the removal language is express about allowing the removal for current and former federal officers (first image) but not the text related to the Fulton County cases (second image). And the 11th Circuit asked about this.

One might wonder given the very restrictive interpretation of federal law in Pate-- a kind of strangulating textualism-- whether the 11th Circuit was already contemplating/leaning into the idea that former federal officials being prosecuted in state court can be removed at all.

I, for one, was skeptical of that argument and remain so despite the appellate court's inquiries. However, the decision in Pate makes me think the 11th Circuit is ready to disagree with me.

I want to be very, very, very clear. These are not identical statutes and so mapping one issue onto the other is not perfectly predictive nor controlling, but it is fair to say this not the kind of news you want if you're Mark Meadows, Jeff Clark, or the among the GOP electors.

cc: @ClarkGSULaw @espinsegall @lee_kovarsky

*is not the kind of news you want, to be even more clear.