The Volokh Conspiracy

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Trump To Remove Criminal Prosecution To Federal Court

Unlike removal under the regular removal statute, removals under 28 U.S.C. § 1442 can be appealed


In Civil Procedure, law students learn about 28 U.S.C. § 1441. This statute (generally) allows a defendant to remove a case filed in state court to federal court if there is complete diversity of citizenship or if there is a federal question on the face of the complaint. If the federal court finds that federal jurisdiction is lacking, the case is "remanded" back to state court. Critically, that order cannot be appealed to the federal circuit court.

But there is another path to remove a case to federal court: 28 U.S.C. 1442. This statute permits removal of a case involving a federal officer from state court to federal court:

(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.

The statute also permits removal of cases involving federal property. (I invoked this other ground during the 3D-printed gun litigation to remove a case from New Jersey chancery court to federal district court; the case ultimately fizzled out.)

Section 1442 is rarely invoked today, but there is an important upside: any remand order can be appealed to the federal circuit court of appeals. (This path for appeal figured prominently in our decision to invoke Section 1442). Section 1447(d) provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

This CivPro backgrounder brings us to the news of the day. President Trump will try to remove his New York criminal prosecution to federal district court. As best as I can tell, this argument was first raised by David Rivkin and Kristin Shapiro in the Wall Street Journal. They wrote that Trump should remove the case. And once removed, Trump could invoked what is known as Supremacy Clause immunity. That doctrine, which flows from McCulloch v. Maryland, holds that states cannot prosecute a federal officer for engaging in some federal function. That landmark case arose from a criminal prosecution of a federal bank employee named McCulloch. Supremacy Clause immunity was also invoked in In Re Neagle. A marshal protecting Justice Steven Field killed a man in defense of the justice. California tried to prosecute the marshal for murder. The Supreme Court held that the prosecution was preempted by Supremacy Clause immunity.

At present, Trump does not hold any federal position. Still, Rivkin and Shapiro explain that Trump would still be entitled to Supremacy Clause immunity.

To be sure, the case against Mr. Trump involves conduct that wasn't "warranted by the federal authority" he possessed. But there is a strong argument that Supremacy Clause immunity should extend to any state criminal prosecutions of federal officers undertaken because of their federal service, even if the charged conduct is unrelated to their federal duties. Permitting states to burden former federal officers on account of their federal services offends the Supremacy Clause's core principles and makes it easy for aggressive state prosecutors to circumvent. As the Supreme Court warned in Neagle, "unfriendly" states could administer the law "in such a manner as to paralyze the operations of the government." That threat exists anytime former or current federal officers are targeted for criminal prosecution because of their federal service. A president or other official can't lead effectively under constant threat of retaliatory prosecution. . . .

An inquiry into whether a state criminal prosecution was undertaken because of the defendant's federal service would involve judicially manageable questions such as whether a reasonable prosecutor would bring the charges and whether there are indicia of political retribution. Mr. Trump has a strong argument here. Does anyone believe he'd be prosecuted for anything having to do with Stormy Daniels if he hadn't become president?

Does this argument work? I have no idea. I recently reviewed a paper about federal-officer removal and Supremacy Clause immunity. I came away with the understanding that this topic is poorly-defined. But let's assume that Rivkin and Shapiro are correct about Supremacy Clause immunity. There is still the threshold question of whether the case can be removed in the first place. Rivkin and Shapiro provide a response:

Federal officers, including former officers, have a statutory right to remove state civil or criminal cases against them "for or relating to any act under color of such office" to federal court (emphasis added). The U.S. Supreme Court has interpreted this language broadly, explaining in Willingham v. Morgan (1969) that "the test for removal should be broader, not narrower, than the test for official immunity" because the purpose of the statute "is to have the validity of the defense of official immunity tried in a federal court."

There is a colorable argument that removal is proper, depending how broadly the phrase "relating to" is read. I think in any case in which Supremacy Clause immunity is valid, then there should be federal officer removal. As far as I know, the Mottley rule does not apply to Section 1442. Stated differently, where federal officer removal is valid, then there would necessarily be Supremacy Clause immunity. These doctrines are like two sides of the same coin.

Going forward, there will be two tracks of litigation. Unless a stay is granted, removal does not halt the state-court proceedings. The criminal trial will go forward, even as the federal removal case is litigated, and appealed. But there is a risk. If a federal court finds that Trump is entitled to Supremacy Clause immunity, then the prosecution may be void.

There is another wrinkle. Noting would prevent Trump from raising Supremacy Clause immunity in state court as well. That creates yet another risk for a conflict, in which a state court denies immunity, but a federal court grants immunity. These dynamics present almost the opposite of Younger immunity–the federal court would be required to halt the state court proceeding. This case very well may go to the Supreme Court.

Once again, Trump will make obscure doctrines of constitutional law great again.

Update: I mistakenly relied on the New York Times, which suggested that the state court proceedings would continue after the case is removed.

But even if the judge finds the request worthy of consideration and orders a hearing, the state case will continue unhindered for now.

A reader flagged a Fourth Circuit decision, which explains that state-court proceedings are put on pause while federal proceedings are litigated:

Ackerman v. ExxonMobil Corp., 734 F.3d 237, 249–50 (4th Cir. 2013) ("Because § 1446(d) explicitly states that "the State court shall proceed no further" once removal is effected, 28 U.S.C. § 1446(d), we agree with the Defendants that the statute deprives the state court of further jurisdiction over the removed case and that any post-removal actions taken by the state court in the removed case action are void ab initio.").

So there would not be two tracks of litigation.

Update #2: My update above was mistaken. Under Section 1446(d), for removal in civil cases, state court proceedings must halt.

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

But under Section 1455(b)(3), criminal proceedings can proceed up to the point of conviction.

(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

The Times was correct. We would have two tracks of litigation.

Update 3: As I understand the statute, the government could prosecute Trump all the way up to jury deliberations, but the court could not enter a judgment of guilt. In other words, a jury could find Trump guilty, but the state court could not do anything with that finding. At that point, does jeopardy attach? What happens if a federal court deems removal appropriate? Would a federal court then be able to retry Trump? Usually, with a federal prosecution, the dual sovereigns doctrine applies. But here, the federal court would be following the state law doctrine. Would such a subsequent prosecution be barred by double jeopardy? I am way outside my area of expertise, so I will simply raise the questions here. Sounds like a procedural nightmare.

Update 4: Section 1442 applies to "any officer (or any person acting under that officer) of the United States." In due course, I will address whether that statute applies to Trump, who held one, and only one federal position: President.