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.

Comments

[John F. Carr]

"where federal officer removal is valid, then there would necessarily be Supremacy Clause immunity"

As I recall the Ninth Circuit held otherwise in a no-longer-precedential opinion in the case of Lon Horiuchi.

[Comment-A]

We'll see what the courts say, but this seems like a nonsense argument from top to bottom:
1. The statute says officer, Trump is not
2. The statute says under color of law, the prosecution is not for any such activity
3. Willingham v Morgan involved current officers charged with stuff they did on the job, this case does not. The court most assuredly did not say that white collar crime unrelated to the office itself constituted "color of law".
4. Indeed, there are laws that forbid campaign stuff from being done with any official action/property, so how does the argument account for that?
The supremacy clause argument is essentially handwaving, and wishful handwaving at that.

[Brett Bellmore]

The argument appears to be that Trump is only being prosecuted on account of having been President, that the charges would not otherwise have been brought. I think that's a plausible claim, but I agree it's a bit of a stretch to leverage that causation into removal to the federal courts.

Honestly, I've always found the whole concept of removal to be more than a bit dubious; It stinks of "For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:"; In the case of Lon Horiuchi it was nothing but that.

[David Nieporent]

The supremacy clause argument is essentially handwaving, and wishful handwaving at that.

Welcome to Josh Blackmanland.

[Bruce Hayden]

“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.”

The interesting twist there is that the DA is stretching the Statute of Limitations first by making the charges a felony, and secondly by ignoring the time that Trump was President. That latter would seem to be burdening Trump on account of his federal service, esp since the critical four years were spent in residence at the WH in DC. Presidents have to officially live in the WH. So he could probably critically argue that standing trial for something that would be time barred absent the 4 years living in the WH in DC burdened his federal service. Except that he arguably wasn’t a federal Officer. Maybe.

[Comment-A]

Or it burdens the state because it can't really sue during that time period, which warrants a stay of the SoL, not a free ride for the defendant. Not saying which should win, but the quasi-immunity during service cuts both ways.

[Noscitur a sociis]

Presidents have to officially live in the WH.

Says who?

[not guilty]

"Under our federal system, it goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government. Because the regulation of crime is preeminently a matter for the States, we have identified a strong judicial policy against federal interference with state criminal proceedings." Mesa v. California, 489 U.S. 121, 138 (1989), quoting Arizona v. Manypenny, 451 U.S. 232, 243 (1981)

[jimc5499]

Last time I checked, Commander in Chief is a Federal Officer.

[Ridgeway]

Didn't Prof B have about 30 posts on here about how the President is not an Officer of the United States?

[tylertusta]

That was for the purposes of Section 3 of the 14th Amendment. It doesn't apply elsewhere.

[Noscitur a sociis]

Incorrect.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3890400

[Jason Cavanaugh]

He most certainly did.

We can all look forward to his upcoming post about how POTUS is now, in fact, an Officer of the United States.

[Dr. Ed 2]

Bruce, you raise an interesting point.

As I understand it, Congresscritters (and hence the POTUS) retain the residency of their respective states -- and hence Trump wasn't absent from New York for the four years he spent in the White House -- and hence the statutes of limitations would have continued to run.

Think about this logically -- if the legal residences of the POTUS and VeeP were to switch to DC during their first terms, none would ever be able to run for re-election because they would be from the same state and how many have been re-elected?

[not guilty]

Donald Trump moved his residency from New York to Florida in September 2019.

[Noscitur a sociis]

Prof. Blackman, I'm a little confused. Even accepting the dubious premise that an indictment for crimes that have nothing to do with his official duties can be considered a prosecution for an "act under color of such office or on account of any right, title or authority claimed under any Act of Congress", the statute grants removal only to an "officer ... of the United States". And as you and Seth Barrett Tillman have decisively proven through your groundbreaking scholarship, the president isn't an officer of the United States. So how can this statute ever be applied to Trump?

[not guilty]

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Ralph Waldo Blackman Emerson

[John F. Carr]

I think Blackman is enjoying the game of law more than he is advocating for Trump to walk free.

[David Nieporent]

He does think law is a game, yes — but do you honestly believe he would invoke this hot mess of an argument in favor of a Democrat?

[SRG]

Schroedinger's Officer...

FWIW it's easy to prove that the president is an officer, from the text of the Constitution itself.

From Art 3:
"The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years,"

"Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

"The President, Vice President and all civil officers of the United States, shall be removed from office"

If the presidency is an office, he who holds it is by definition an officer. The End.

Further,

[tylertusta]

Before you pat yourself on the back, consider that Prof Blackman was specifically referring to how the term was (poorly) defined in Section 3 of the 14th Amendment.

The statute and constitutional issues here are very, very different.

[Noscitur a sociis]

I see you are unfamiliar with Prof. Blackman's 10 part magisterium Offices and Officers of the Constitution, parts III-X forthcoming in the South Texas Law Review. His CV is admittedly a bit cumbersome to navigate, so it's not too surprising that you missed it.

[Krychek_2]

Whatever the legal answer may be -- and the answer to that is that it's complicated -- it strikes me that the policy answer ought to be that a federal officer can only remove a criminal case that involves a federal interest, which this one does not. Suppose as president he had committed a common law battery, or filed a perjured affidavit in state court over a state law claim, or driven drunk when the Secret Service wasn't looking. Suppose someone died at his property because of his negligence, or suppose his property were creating a private nuisance to the neighbors. There is no federal interest in any of those cases, other than the fact that he's president. Is Trump really suggesting that all of those cases should be removed to federal court?

[Noscitur a sociis]

It's really not very complicated: the statute obviously doesn't apply here, removal will be denied, and Trump will lose on appeal.

[MatthewSlyfield]

"it strikes me that the policy answer ought to be that a federal officer can only remove a criminal case that involves a federal interest, which this one does not."

The felony enhancement is predicated on a violation of federal campaign laws. That strikes me as being a federal interest.

[not guilty]

The four corners of the indictment (linked downthread) do not specify what other crime is alleged to have been intended and the commission thereof concealed.

[Brett Bellmore]

Which by itself is kind of dubious, isn't it?

[not guilty]

Uh, no. Team Trump is free to seek a Bill of Particulars.

[Gandydancer]

Is there a procedural reason why he has not yet done so?

[Brett Bellmore]

Whether or not they're free to seek one, it's still dubious to leave such a key element of the prosecution unspecified.

[not guilty]

Element is a term of art. Specification of the subject other crime is not an element of the offense. Any other crime would suffice (although all jurors would need to agree as to which crime in order for the verdict to be unanimous).

[EscherEnigma]

Is Trump really suggesting that all of those cases should be removed to federal court?

Of course not. Trump (or at least, his lawyers) literally argued that he couldn't be sued/prosecuted at all because he was president (even for things that happened before he became president).

So no, they aren't arguing that the cases should be moved to federal court. They're arguing that the cases should be stopped dead in their tracks and killed with fire (and that all the judges ruling against him are very bad people that are obviously prejudiced against him).

[mse326]

1. They don’t cite any statute or opinion saying that former officers are included in removal. They simply state ipse dixit there is a strong argument they are. But let’s just assume they are.
1b. It also applies to “officers of the United States” which you have argued doesn’t include the President. I don’t have a strong feeling on that, but thought I’d mention it.
2. 1442(a)(1) requires the act “under color of such office.” The crime he’s accused of occurred before he was President so obviously wasn’t an act he did under color of such office. It’s easy to just assert you have strong argument if you ignore the plain language that refutes that

I don’t see any remotely persuasive argument, let alone a strong argument, for removal.

3. I don’t in any way dispute that there is a large political componenet to Bragg’s decision to prosecute. I do, however, dispute there is a “strong argument” (there it is again) that Supremacy Clause authorizes federal courts to divine the reasoning of state prosecutors here. The immunity speaks for itself. The state can’t prosecute federal officers for acts they committed in pursuance of their federal duties. Pretty simple, and all that the supremacy clause requires. And certainly not something that applies to Trump’s actions. The notion that that can easilly be extended to immunize any current or former federal officer for any criminal act they have ever done if we determine that politics were a motivating reason for the prosecution doesn’t fit at all with the what the immunity is meant to protect.
4. We already have doctrines for prosecutions that may be for illegal purposes. Selective prosecution and retaliation. And as you said he can still raise this in state court.

[Noscitur a sociis]

The crime he’s accused of occurred before he was President so obviously wasn’t an act he did under color of such office.

The charged offenses are alleged to have occurred between February and December 2017, so while Trump was serving as the president.

(Needless to say, I don't think that makes the argument any less frivolous.)

[mse326]

Fair enough. It is still pretty obviously not something he did under color of the office, so it ultimately doesn't change the analysis

[David Nieporent]

There is a strong argument for removal, but it is too big to fit into the margin.

[Lawstudent2024]

Large swaths of this seem completely incorrect and I don't get why Blackman is allowed to publish something so totally missing key legal issues.

Trump could raise the supremacy clause as a defense, that would allow him to remove the case to federal court, yes. But it's not clear he'd even count as an officer here, or have a defense because he wasn't an officer at the time of the alleged crime. He only became an officer after the incident. And the Court has never recognized such a broad immunity that any federal official charged with a crime gets to argue it's just because of their status as an officer. It's really untested and the linked article basically seems to make it up out of whole cloth to vent their anger at Bragg. Not that these basic issues would get in the way of JB publishing his latest poorly thought out screed!

But what's most weird is Blackman seems to think there's some kind of parallel litigation? What? First, federal courts aren't going to enjoin the state proceedings while they are ongoing due to Younger abstention. And second, removal means the whole case is removed. There's no parallel litigation where we litigate the same claims in different courts for the same criminal proceeding. This is super basic FedCourts/CivPro stuff and Blackman just breezes right by it so he can imagine some universe where this goes straight to SCOTUS.

Why is this even being published if the author is just making such unbelievably basic factual errors and just going through really untested legal theories with just a hand-wave an "maybe!"

[Spinach Chin]

"he wasn’t an officer at the time of the alleged crime. He only became an officer after the incident."

This is incorrect. The alleged crimes occurred when he was president.

[Dan Schiavetta]

Trump can't "try" to remove it. He just does. Removal is self-executing. It's then up to the other side to move to remand.

[Noscitur a sociis]

In criminal cases, the district court has to determine whether the removal is valid before accepting the case (and contrary to Prof. Blackman's update, doesn't divest the state court of jurisdiction until it decides to accept it).

[Dan Schiavetta]

Ok thanks. (I don’t do criminal law. I was an intern in the Brooklyn D.A. office, and decided that neither prosecution nor defense was something I could feel comfortable doing.)

[Noscitur a sociis]

Prof. Blackman,

Is there a reason why your update cites a case interpreting the statute that governs removal of civil cases, rather than the (different) process set out in the statute that governs removal of criminal proseuctions?

[not guilty]

Trump's position strikes me as quite a Hail Mary. Trump is not accused of conduct "relating to any act under color of" his office as president.

Removal of a state criminal prosecution to federal court must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121, 133-34 (1989) ("In sum, an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense."). I shall be quite curious to see what federal defense to the crime of falsifying business records Trump will assert here.

[Martinned]

Trump’s position strikes me as quite a Hail Mary.

Odd, because usually the arguments Trump makes in court are always so cogent and plausible.

[SimonP]

Given that even Josh thinks this Trump-fellating argument is a weak one, this one's unlikely to go anywhere. Just trying to pull a friendly judge, I'd bet, to get it mucked up for another year.

[Michael Ejercito]

Someone again remind me what Trump.is alleged to have done?

[not guilty]

Google is your friend. https://www.manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-Indictment.pdf

[Mr. Bumble]

Goggle is no one's friend.

[Michael Ejercito]

So it was about Stormy Daniels.

[not guilty]

The indictment doesn't reference Stormy Daniels.

[BillyG]

DA Bragg is alledging it was illegal for Trump to pay hush money to Stormy using his own money and instead should have classified it as a campaign contribution. For context, John Edwards used campaign money to give money to his mistress (they had a kid) and was prosecuted by the DOJ for it but not convicted. Bread t is alledging Trump should have done what John Edwards did.

[windycityattorney]

Wait wait wait... Trump was un-indicted co conspirator to Cohens charges. He wasn't charged federally because at the time of Cohens charge he was President and the DOJ policy was to not indict a sitting president. BUT that case/allegations are presumably what Bragg used to extend the SOL and bump a state court misdemeanor into a felony.

But now, Trump wants to say it has to be removed to federal court where he would have supremacy clause immunity? Sitting presidents can't be indicted and former presidents have supremacy clause immunity for alleged crimes that occurred while running for president? Gotta say, all those "nobody is above the law" comments are looking pretty weak if this pans out.

But in reality it likely won't the only thing Trump wants to accomplish is a lengthy appeal process...just long enough to get him past the general election.

Presumably this same removal scenario would play out for Georgia election interference potential state charges. It won't play for his post presidency federal obstruction of justice in directing his attorneys to lie about returning classified documents. But if he can delay that long enough...maybe he will be sitting president again and then the DOJ policy of not indicting a sitting president will kick back in. He would then be the true Teflon Don.

[John F. Carr]

Trump's lawyers may think he would be treated more kindly by a federal judge, or the legal issues resolved more to his liking by a federal Court of Appeals.

[Brett Bellmore]

"Trump was un-indicted co conspirator to Cohens charges."

As I understand it, federal policy is to not name un-indicted co-conspirators, on the basis that doing so had proven to be nothing more than a way to defame people under the color of law. Indict, or leave them out of it, that's the federal rule.

It would be a good rule at the state level. It's too easy to get a guy going down on some serious charge to implicate somebody you don't like, in return for going easy on them.

[ObviouslyNotSpam]

Er, who else would have conspired with Cohen to help Trump's election chances? (And, er, paid him back, tax-free, for doing so...)

[Brett Bellmore]

This whole line of reasoning really strikes me as dubious.

To be sure, it is pretty obvious that the state charges would never have been brought if Trump weren't a former President, and a potential future one, of the opposing party from the AG, who literally ran on finding SOMETHING to prosecute him for.

Nobody has ever previously been charged on this basis, and if he HAD listed the money as a campaign expenditure, they would have just flipped the case and claimed THAT was fraudulent. About as clear cut a case of abusing state level legal process to attack a federal candidate for political reasons as you could ask for.

So the injustice is manifest, and it seems like some way of dealing with it is needed. But that doesn't mean the remedy sought here is reasonable.

[Kazinski]

It seems to.me he has a better case under 28 U.S.C. § 1441, because
"there is a federal question on the face of the complaint", the whole case.is.dependent on the allegation that the payments to Stormy were a Federal crime, a very dubious allegation that should be decided in Federal court.

But I suppose the attraction of using 28 U.S.C. 1442 is it will tie it up in Federal court for a few years.

[John F. Carr]

Section 1441 only applies to civil actions.

[Noscitur a sociis]

1. 28 U.S.C. § 1441 only applies to civil actions. One way you can tell this (other than reading it) is that it's called "Removal of civil actions".

2. Even for civil cases, § 1441 only applies to cases where "the district courts of the United States have original jurisdiction". A federal court does not have original jurisdiction over this state criminal prosecution.

3. There is no complaint in this case.

4. There is no federal question presented "on the face of the" indictment.

Other than that, great point!

[Paul Alan Levy]

Even assuming that there is a tenable Supremacy Clause argument here with respect to a criminal prosecution against a FORMER federal officer, and that the indictment is for actions undertaken
"under color of such office," highly dubious in themselves, federal officer removal allows removal of a prosecution of "any officer . . . of the United States." The op-ed by Rivkin and Shapiro blithely assumes that a FORMER officer can remove, but they cite no authority in this point and neither does Blackman.

Is there such authority? Generally speaking the rule is that removal statutes are strictly construed

[Moderation4ever]

"Does anyone believe he'd be prosecuted for anything having to do with Stormy Daniels if he hadn't become president?"

While this statement is true, it misses the fact that he was a candidate and Ms. Daniels statements might have been damaging to his campaign. If a billionaire pays off a mistress no one cares, but in a campaign, it comes under in-kind payments and has to be reported. Is that right, I don't think so, but Congress would need to spell in out in the reporting requirements.

In most cases, these campaign finance issues are accepted by the campaign and a fine is paid. Why did Trump leave this hanging over his head and not deal with it when he controlled the DOJ? He could have closed the case before anyone could use it against him.

[Brett Bellmore]

The problem is that to make this a crime, you have to accept that this was, beyond any reasonable doubt, intended as a campaign expenditure. Like, nobody ever pays off a blackmailer unless they're running for office, right?

Then you have to accept the claim that it's fraudulent to list as legal expenses paying your lawyer to secure an NDA from somebody.

Then you have to prove that he actually ordered the payments so recorded.

You're just piling inference on inference to get to Trump, in a case that would never normally have been prosecuted, brought by an AG who LITERALLY ran on finding something to prosecute Trump for.

Stinks on ice.

[Moderation4ever]

First idea that Donald Trump was paying for Daniels silence for any other reason than the campaign doesn't pass the smell test. There is nothing to suggest that Trump ever worried about the impact of his womanizing on his wives, his family, or his business.

I am not sure that this is blackmail because I don't think Daniels ever came to Trump requesting money. She had a tale to tell, and she was approached to keep quiet. There is a difference, even though she did except money for silence.

As for the legal fees, Trump paid much more than the legals fees here, he was making a payoff and using his lawyers to cover that fact. The legal fees would only be a fraction of actual money paid.

Did he order the payments, well the checks had his name on them. That means he approved them, whether he ever looked at them or not.

[Spinach Chin]

"First idea that Donald Trump was paying for Daniels silence for any other reason than the campaign doesn’t pass the smell test."

This is not illegal.

[Moderation4ever]

No, it is not and that is not the former President's problem. It is the manner in which he chose to make the payment to hid them.

[Brett Bellmore]

But then you're up against Bragg needing an underlying crime to promote the misdemeanor he's prosecuting into a felony.

And you still need to prove that labeling a payment to your lawyer to negotiate an NDA a legal expense is somehow fraudulent. That seems a bit of a stretch to me.

[David Nieporent]

He labeled the money for Stormy Daniels a legal expense, which it of course was not.

Bragg says he has evidence that Trump expressly explored the idea of dragging it out until after the election at which point he wouldn't have to pay. If Bragg can produce such evidence, that pretty much blows up any theory that this wasn't election related.

[Brett Bellmore]

It paid for an NDA, didn't it?

[Purple Martin]

It was specifically recorded in business records as payment for legal services. Daniels certainly provided services but not anything that would fall under the customary definition of legal services.

[Jason Cavanaugh]

[David Nieporent]

You’re just piling inference on inference to get to Trump,

Does Brett think that most criminal prosecutions involve cases where the defendant just publicly announces his intent, and then lists all the steps he undertook to commit the crime, and then cites all the physical evidence in support of his own guilt?

[Sarcastr0]

Oh dear, this post did not go well.

Critical thinking is an important aspect of intelligence.

[Sarcastr0]

Lol @ update 4.

[MikeNY]

I don't see how I can ever read a Blackman post again. Three updates, some contradictory, and as noted below no research into NY law on jeopardy.
I read Volokh because I expect the authors to be thoughtful. Thoughtfulness includes reading the statute being written about and research on questions critical to the point before proverbially putting pen to paper. I think the author's rush to write without this diminishes the endeavor and wastes the time of the readers. Anyone can make a mistake, not thinking in connection with the first update is lazy. How would the Professor grade a paper with these attributes?

[David Nieporent]

I read Volokh because I expect the authors to be thoughtful.

You might want to skip the Blackman posts, then.

[The Turtle Dove]

Less a second bite at the apple than giving the state a wax apple, perhaps.

Mr. D.

[not guilty]

I don't see how the Supremacy Clause affords immunity or a defense to the state offenses alleged at bar. The only authority referenced by Mr. Rivkin and Ms. Shapiro is In re Neagle, 135 U.S. 1 (1890). There the defendant who had been charged in state court was a Deputy U.S. Marshal who was plainly acting pursuant to a federal duty to protect a U.S. Supreme Court justice while riding circuit.

If Donald Trump falsified business records as alleged in the indictment, he was not doing so colorably in connection with any duty or obligation attendant to his role as a federal office holder. The Supremacy Clause is simply not germane to Trump's conduct.

[Jason Cavanaugh]

"I am way outside my area of expertise..."

You can just start putting that at the bottom of each and every post you make.

[Purple Martin]

...or the top perhaps?

[Jason Cavanaugh]

😀

[Brett Bellmore]

I still don't see how you can convict somebody of fraudulently concealing a crime without first proving in a court of law that the crime happened.

Ok, I get that Cohen pled guilty, and Trump was supposedly concealing Cohen's crime, not Trump's. But Cohen DID plead, was not convicted after a trial.

So a key element of Trump's supposed crime was never subject to the due process TRUMP is entitled to. It was just purchased, as it were, from Cohen, with the consideration he pled guilty in return for. But Cohen isn't entitled to waive Trump's due process rights, only his own.

So, they had Cohen dead to rights on the tax evasion, and went easy on him in return for him implicating Trump in a crime Trump is not charged with, and therefore is denied the opportunity to subject to adversary process.

The whole thing stinks on ice, even if the law is warped enough to permit it.

[Jason Cavanaugh]

"I still don’t see how you can convict somebody of fraudulently concealing a crime without first proving in a court of law that the crime happened."

Because you can't be bothered to actually read the fucking statutes, motions, or anything else related to the case which would inform you of the facts.

If you did, you might discover that your entire premise is false to begin with, but that's probably asking too much from you.

[Kazinski]

Yeah, the prosecutor read the statutes.

Same statutes and theory they used to charge John Edwards. How'd that one work out for them?

[Noscitur a sociis]

Trump is not, in fact, charged with violating the same statute as John Edwards.

[Brett Bellmore]

Not technically, no. The underlying argument, that a payoff to conceal an affair is a campaign expenditure, is the same.

Edwards pleads not guilty to felony charges in NC

"Prosecutors said the spending was illegal because the 2004 Democratic vice presidential nominee should have reported it on public campaign finance filings and because it exceeded the $2,300 limit per person for campaign contributions."

"While Sloan called Edwards' conduct despicable, she said the government case rests on finding the payments by Edwards' two wealthy old friends to be campaign contributions "but no court has ever interpreted the definition of campaign contribution this broadly." "

As Edwards was acquitted, that remains true. Precedent is that paying somebody off to conceal an affair isn't a campaign expenditure.

[Sarcastr0]

Precedent does not work like that.

[Noscitur a sociis]

1. A decision of a federal district court does not even bind that court in the future, much less a court in a different state and circuit.

2. A jury verdict is not persuasive authority either since the reasoning is unknown.

3. Edwards was not acquitted.

Other than that, great point!

[Brett Bellmore]

1. I didn't say it was binding precedent.
2. So what?
3. Edwards was acquitted outright on one charge, the claim that accepting the money he used was illegal. The jury deadlocked on the others, 11-1 for acquittal on filing a false campaign report, 8-4 on the remaining campaign finance charges. The DOJ decided to drop the case a couple weeks later, rather than attempt to retry him on the deadlocked counts.

Close enough to "acquitted", IMO.

[Noscitur a sociis]

2. So what?

Well, let's think about it for a second. Lots of people have been charged with murder, on the theory that they intentionally shot and killed another person, and yet have been acquitted. Is that preceden that this is not a viable theory of liability for murder?

Close enough to “acquitted”, IMO.

To be clear, I think there are lots of issues with the Trump prosecution. But fact that 10 years ago, a different guy charged with different crimes in a different state by a different sovereign didn't get convicted isn't one of them.

[Brett Bellmore]

My premise is that, if the law permits this, the law is obscene. That premise is not contingent, obviously, on the law not permitting it.

[Noscitur a sociis]

I think I must be misunderstanding your position, so perhaps you can clarify it.

At Trump's trial, the prosecution will need to prove, with respect to each count, that he either intended to conceal a crime. (Or to commit another crime, but set aside that theory for now.) If the jury concludes that Trump did intend to conceal something, but that the thing he intended to conceal was not a crime, they will find him not guilty.

You seem to think that, prior to prosecuting someone for concealing the crime, someone needs to be convicted of that crime. Why? As you note, there's no need for the defendant to have any involvement in the underlying crime: if there happens to be a bar to prosecuting that person—say, the perpetrator died, or is a fugitive, or their identity is unknown (maybe because of the concealement!)—why should that preclude prosecuting the concealment.

And on top of that, what is the problem here? As you note, Michael Cohen was convicted of the crime that (it appears) the prosecution will argue is the target of the concealment.

So what am I missing?

[Purple Martin]

Yes, you do usually end up backing into the unsupported assertion of ...then the law is obscene!...after exhausting every other possibility of support in either law or logic.

[not guilty]

“I still don’t see how you can convict somebody of fraudulently concealing a crime without first proving in a court of law that the crime happened.”

Donald Trump is not necessarily accused of concealing another completed crime. As to each count of the indictment, it is up to the prosecution to prove to a New York County jury beyond a reasonable doubt: (1) that Trump falsified a business record, (2) that he did so intending to defraud, (3) that he intended to commit another crime, and (4) that he intended to aid and conceal commission of such crime as he was contemplating.

The actus reus is the falsification of a business record. The culpable mens rea can be inchoate.

Michael Cohen’s federal guilty plea is evidence of the commission of a crime. It is not conclusive — the jury will give it such weight as they believe it deserves.

[ReaderY]

The jury is not the only route. It is still open to Trump to argue that the underlying conduct concealed is not in fact a crime and that the charges should be dismissed or he should be adjudged not guilty as a matter of law. He can make this argument both with the trial judge before any trial and on appeal if the trial judge rules against him. Michael Cohen’s guilty plea does not definitively establish that this conduct was a actually a crime, amd it does not prevent Trump’s lawyers from arguing that it wasn’t.

[not guilty]

On a motion for judgment of acquittal (as well as on an appellate challenge to the sufficiency of evidence to support conviction), the court is required to take the evidence in the light most favorable to the prosecution, including all legitimate inferences to be drawn therefrom.

The successful assertion of a successful challenge to a jury verdict for insufficiency of evidence is vanishingly rare.

IOKIYAR is not a rule of law.

[John F. Carr]

In corruption cases the odds of reversal are better than usual. A jury may vote guilty because the guy is up to no good. But the law may demand a quid pro quo instead of an aura of corruption. The law may demand knowledge that an act is illegal.

[not guilty]

"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?"

I haven't researched New York law specifically, but jeopardy ordinarily attaches in a criminal case when the jury is sworn (or in the case of a bench trial, when the first witness is sworn). If the trial court lacks jurisdiction, jeopardy does not attach at all. If the state court purported to try Trump without jurisdiction to do so, there would be no impediment to a federal trial.

[Kazinski]

There wouldn't be any impediment to a federal trial anyway.

Dual sovereignty.

[Voize]

[ReaderY]

Trump’s argument is extremely weak to put it mildly. He was not a federal officer at the time of the conduct alleged in the indictment, and he is not a federal officer now. But as has often been the case in Trump’s litigation strategies, the legal merits of the argument are likely totally beside the point. Making this claim allows him to take advantage of the automatic right of appeal, which if his lawyers can find a way to stall the proceedings will likely result in significant delay. And delaying his case may itself be of significant value to him.

[Spinach Chin]

The alleged conduct took place in 2017

[anon_e_moose]

There will be parallel proceedings only up until the Federal Court: (1) issues a summary remand per 1455(b)(3); or (2) issues its decision on remand per 1455(b)(5) which requires a "prompt" evidentiary hearing and that " f the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further."

So realistically there's no chance of the state proceeding double jeopardy issue unless the state court tried to rush to trial.

[not guilty]

Trump's notice of removal is here. https://www.documentcloud.org/documents/23798502-trump-filing-to-move-ny-case-to-federal-court

Among the things Trump must show to support removal is that the state criminal prosecution is for an act under color of office. To satisfy this requirement, Trump must show a nexus, a "causal connection between the charged conduct and asserted official authority." Jefferson County v. Acker, 527 U.S. 423, 431 (1999), quoting Willingham v. Morgan, 395 U.S. 402, 409 (1969), and Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926).

The gravamen of the criminal conduct alleged in the indictment is the falsification of business records with intent to conceal commission of another crime. How can there be any nexus between that and federal official authority?

[ObviouslyNotSpam]

Who pays for Trump's chumps' frivolous filings?

[not guilty]

The case has been assigned to Senior District Judge Alvin Hellerstein, a Clinton appointee. How long will it be before Trump begins lambasting this assignment?