New In Lawfare: "Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court"

Seth Barrett Tillman and I discuss whether the President is an "Officer of the United States" for purposes of the federal officer removal statute.

Two weeks ago, President Trump removed his criminal case to federal court. (I wrote about Trump's motion here.) 28 U.S.C. 1442 provides, in part:

(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.

Yes, you read that right. Trump could only invoke this statute if, as President, he was an "Officer of the United States." Sometimes I feel like I am living in the movie Groundhog Day, but with the Constitution's officer-language.

Seth Barrett Tillman and I wrote a new article for Lawfare, titled Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court. Here is the introduction

Last month, a Manhattan grand jury indicted Donald J. Trump for violating state law based on alleged "hush money" payments to Stormy Daniels. To be precise, Michael Cohen, who was then-candidate Trump's lawyer, paid the adult film star before the 2016 election. And after the inauguration, President Trump reimbursed Cohen for those payments. Indeed, Trump allegedly signed the checks to Cohen in the Oval Office. That timing may matter. 

Trump now alleges that he made those payments as part of his federal duties, and as a result, the criminal case against him belongs in federal court. Trump's lawyers have invoked the obscure federal officer removal statute. This statute allows an "officer of the United States" to remove a prosecution from state court to federal court. But the former president can only remove the case to federal court if he was an "officer of the United States." Fortunately for District Attorney Alvin Bragg, there are good reasons to conclude that the elected president was not an "officer of the United States," so the case should stay in Manhattan criminal court.

Tillman and I walk through the history of the federal officer removal statute from the War of 1812 to the present. We also discuss DOJ policy with regard to the phrase "Officers of the United States":

The Department of Justice has long reasoned that the phrase "officers of the United States" in the Constitution and federal statutes should not extend to the elected president. For example, in 1969, ​future-Chief Justice William H. Rehnquist, then an Executive Branch attorney, stated that statutes that refer to "officers of the United States" generally "are construed not to include the President unless there is a specific indication that Congress intended to cover the Chief Executive." Five years later, future-Justice Antonin Scalia, then also an Executive Branch attorney, reached a similar conclusion. He wrote, that "when the word 'officer' is used in the Constitution, it invariably refers to someone other than the President or Vice President." These Executive Branch precedents would counsel against deeming the president an "officer of the United States" for purposes of the federal removal statute.

The Department of Justice is not a party to this prosecution, but the federal court should consider calling for the views of the United States here.

For those who want to learn more about the phrase "Officers of the United States," see Part III of my ten-part series with Tillman.