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.

Comments

[Frank Drackman]

"Lawfare"?? (are they still in the league?? HT B. Terry)
Run by Mr "IANAL" himself Ben Witless,
Who, and I'm quoting from his Brookings Institution Bio,
"He graduated from Oberlin College in 1990, and he has black belts in both taekwondo and aikido."

Frank " Has Black Belts from Men's Wearhouse and Walmart"

[SRG]

AFAIC they're all wrong and I am right. The presidency is referred to as an office in the Constitution. By definition, someone holding an office is an officer, and you don't need an explicit statement to that effect. The End.

[Frank Drackman]

and has his own "Oval Orifice"
and how could the "Commander in Chief" of all the Armed Forces not be an "Officer"??
Reminds me of the whole Obama-care fiasco where an "Exchange Established by a State" was stretched to include Exchanges established by the Federal Government, on the basis that that was what the Idiots in Congress meant when they wrote the law they didn't read.

Frank

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How's about police officers?

From what I have read of this argy bargy over who is an officer, the Constitution seems to have several inconsistent uses which make you flat statement impossible to apply. But IANACL.

[SRG]

Police officers aren't constitutionally recognised 🙂

IANA(C)L either.

[Martinned]

Except in this case the issue isn't the Constitution but a statute. And if a statute has two possible interpretations, one of which is clearly bonkers, you opt for the other one. In this case, that means interpreting 28 USC 1442 as including the President. Same result, different reasoning.

[QuantumBoxCat]

From the Court's unanimous opinion in United States v. Smith, 124 U.S. 525 (1888).

"An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution. This subject was considered and determined in United States v. Germaine, 99 U. S. 508, and in the recent case of United States v. Mouat, ante, 124 U. S. 303. What we have here said is but a repetition of what was there authoritatively declared."

[SRG]

Conceivably they found it so obvious that the president was an officer they felt no need to clarify, while clarification was necessary in other instances. It remains the case that if the president is not an officer, the presidency is not an office.

[SimonP]

"Conceding the battle to win the war" is perhaps more ideologically consistent than "having your cake and eating it too," but it's not necessarily a better look.

[Ghost of Patrick Henry]

So, the states can prosecute the President in state court, without removal, but can't prosecute lower level federal officers. Doesn't make sense to me. So, Texas, for example, can prosecute President Biden, but not his appointees. Got it.

[Magister]

Not entirely inconsistent.

The President probably has the full resources of the executive branch to deal with improper state prosecution, and it will be widely noted and become a huge political issue; the President is rightly the target of politics (and could maybe pardon himself for anything removed to federal court). But prosecutors in a crazy enough state could harass minor officers of the federal government, impeding the work of all similar officers by threat of similar prosecution.

Conversely, a corrupt enough federal judiciary could make the President a tyrant - remove every state action to federal court, appeal up to the Supreme Court, and a partisan majority rules in favor of the President. (Which is what Trump expected with his attempts to overturn the 2020 election.) It seems harder for this to work to immunize the minor officers who can remove to federal court, although a corrupt President and Supreme Court could perhaps implement a kind of "unqualified immunity" - the people would have to elect a different President and a Congress willing to impeach judges.

[QuantumBoxCat]

In this post, Josh writes "Two weeks ago, President Trump removed his criminal case to federal court..."

In his Lawfare post, Josh writes: "At present, Trump’s motion to remove the case is sitting before a federal judge in Manhattan. Before ruling, the court should consider calling for the views of the Department of Justice."

Which one is it? Did Trump remove the case to federal court, as stated here, or did he file a motion to remove the case, as stated in Lawfare blog?

[Noscitur a sociis]

You may recall Prof. Blackman having some trouble with this on the last post.

[David Nieporent]

Kind of ironic for a QuantumBoxCat to ask "which one is it".

[Bored Lawyer]

It is and it isn't.

[F.D. Wolf]

Prof. Blackman engages in an exercise of hyper-literal textualism that would defeat the clear intent and purpose of the statute. What is the purpose of the federal officer removal statute? To protect a federal officer from local prejudice. By Blackman's reasoning, the individual most in need of the statute's protection would be denied it.

In Lamar v. United States, 241 U.S. 103 (1916), the Court considered whether a man impersonating a member of Congress could be charged under a statute making it a crime to "falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any Department, or any officer of the government thereof." While acknowledging that a member of Congress was not an "officer" per the language of the Constitution, the Court, nonetheless, held that the statute did apply. It was the "context if the statute" that mattered.

Likewise, several cases have held that a congressman is an "officer if the United States" for the purposes of the federal officer removal statute. E.g., Williams v. Brooks, 945 F.2d 1322 (5th Cir. 1991); Richards v. Harper, 864 F.2d 85 (9th Cir. 1988); Hill Parents Ass'n v. Giaimo, 287 F.Supp. 98 (D. Conn.1968); Preston v. Edmondson, 263 F.Supp. 370, 372 (N.D. Okla. 1967).

I cannot imagine why the principle, already extended to members of Congress, would not apply to the President.

[George]

From my perspective, I see two problems with Trump's assertion:

1) as an EX-president, there is no way in HELL he is anything that might be considered an "officer of the United States." He is a private citizen and was when the charges were filed.

2) The assertions in the charges have nothing to do with the official duties of a President and, in fact, occurred prior to his election, much less inauguration, and hence he was again, a private citizen, not an "officer of the United States."

His argument is as stupid and silly as Bill Clinton's attempts to claim that since as he was "commander in chief" as President, he could claim exemptions given members of the military.

[F.D. Wolf]

The supposed crimes are Trump's payments to Cohen which he allegedly mischaracterized, and those payments occurred, according to the indictment, in 2017, when Trump was President.

Whether those acts were "for or relating to" his office is a different question. Notably, Congress added the words "or relating to" in 2011, and those words are capable of broad construction, though the Supreme Court has not yet had occasion to comment on their import, in regard to this particular statute. But in other contexts, it has read the words very broadly:

For purposes of the present case, the key phrase, obviously, is "relating to." The ordinary meaning of these words is a broad one "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with," Black's Law Dictionary 1158 (5th ed. 1979)—and the words thus express a broad pre-emptive purpose.

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992).

To bring the alleged misdemeanor of mischaracterizing legal payments within the statute of limitations, Bragg had to make them felonies, which he did by alleging they were in furtherance of breaking another law, specifically federal campaign finance law. (The whole case really is one tenuous legal theory stacked upon another upon another). Regardless, arguably, campaigning for President is "related to" the office of President.

[MatthewSlyfield]

"Bragg had to make them felonies, which he did by alleging they were in furtherance of breaking another law, specifically federal campaign finance law."

While a federal campaign finance violation is the only reasonable crime Trump might have been trying to further, Bragg was in fact not specific about this. From what I've read, the indictment issued against Trump goes to great lengths to not specify what crime this was in furtherance of.

[F.D. Wolf]

Yes, you are correct. My mistake.

[David Nieporent]

Whether those acts were “for or relating to” his office is a different question.

And an entirely irrelevant one, because that's not what the statute says.

It says "for or relating to any act under color of such office." A campaign finance violation might relate to the office for which one is campaigning, but it is not an act "under color of" the office.

[F.D. Wolf]

The statute is right there in the original post, though I don't think highlighting "color of" particularly changes anything. Your conclusory statement aside, I don't purport to guess how a court would rule on the question.

He was the President. He made a payment to his lawyer regarding his presidential campaign. It doesn't seem exactly far-fetched to suggest that was "related to" being President (or, since you don't seem to care for brevity, "acting under the color of the office of President.") But, again, I don't purport to know how a court might rule on that in the future.

[Noscitur a sociis]

The statute is right there in the original post, though I don’t think highlighting “color of” particularly changes anything.

That's not what David Nieporent highlighted.

[F.D. Wolf]

Some might recall the case of K&D LLC v. Trump Old Post Office LLC, 951 F.3d 503 (D.C. Cir. 2020).

The Cork Wine Bar sued President Trump and his hotel for unfair competition practices in the Superior Court for the District of Columbia. Trump removed the case to the federal district court, which dismissed the case for failure to state a claim. On appeal, Cork argued that the case should have been remanded because Trump was not acting under color of his office.

The D.C. Circuit sided with Trump and affirmed the dismissal:

We apply a two-step test in officer-removal cases. First, the officer must "raise a colorable federal defense." Second, the officer must show that the suit is one "for or relating to any act under color of [his] office." We must construe the statute liberally in favor of removal, and "we credit the [officer’s] theory of the case for purposes of both elements of" the removal inquiry.

The words "related to" cover quite an expansive territory.

[David Nieporent]

Again, "related to" is irrelevant. An act under color of law is the relevant language. In the case you cited, the plaintiff's allegation was that Trump's being president was the violation:

We agree. The fact that Donald Trump is President is indispensable to Cork's claim. Cork's complaint expressly targets "the unfair advantage that the Trump International Hotel ... has gained from Defendant Donald J. Trump being the President of the United States." Compl. ¶ 2, J.A. 25 (emphasis added). Indeed, Cork conceded at oral argument that its unfair-competition claim is "based entirely" on President Trump's status as a federal officeholder. Oral Arg. Tr. 19:22-25. As a result, Cork argues, the ongoing unfair competition can be remedied by President Trump's immediate resignation from office. Compl. ¶ 42, J.A. 33.

A suit that hinges on President Trump's status as President of the United States has a causal connection to his "asserted official authority." Acker, 527 U.S. at 431, 119 S.Ct. 2069 (internal quotation marks omitted). If Cork is right about the District's common law, the President has a legal duty to either resign from office or divest from the Hotel. As explained immediately below, an officer's failure to comply with a legal duty imposed by his official status is an "act under color of [his] office," and a suit seeking to impose liability "for" that failure surely qualifies for removal under section 1442(a)(1).

Here, of course, the alleged campaign finance violations did not turn in any way on Trump's status as president; they would have been just as illegal if Trump had lost the election. The claims do not apply to a "legal duty imposed by his official status." They could not be remedied by him resigning, the way the restaurant's claims could be.

Note: the D.C. Circuit screwed up its analysis in a different way: it cites the Supremacy Clause as the basis of Trump's "colorable federal defense." But the Supremacy Clause does not, by its own text, apply to the District of Columbia. (Of course, there are many federal statutes that treat D.C. as a state. But the court cited no such statute in its analysis; it relied solely on the constitution, which does not of course treat D.C. as a state.)