New York District Attorney Bragg Argues That President Trump Was Not An "Officer Of The United States"

Bragg’s argument may harm Trump in the removal case, but in the long run, this argument could help Trump in future political disqualification-related litigation under Section 3 of the Fourteenth Amendment.

[This post was co-authored with Seth Barrett Tillman]

Last month, a Manhattan grand jury indicted Donald J. Trump for violating state law based on alleged "hush money" payments to Stormy Daniels. Trump moved to remove that case to federal court. Trump's lawyers invoked the 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."

On Tuesday, Alvin Bragg, the New York District Attorney filed a brief in federal court opposing the removal motion. Bragg made various arguments for why removal was not proper. But the final section of the brief contended that Donald Trump, while serving as President, was not an "Officer of the United States." Part IV of the brief (pp. 30) explains this position:

The arguments above defeat defendant's attempt to remove this state criminal prosecution and require remanding this matter to state court. Although this Court need not go further, remand would also be independently mandated by defendant's failure to establish that he was an "officer . . . of the United States" entitled to invoke removal at all under 28 U.S.C. § 1442(a)(1).

In construing a variety of other constitutional and statutory provisions, the Supreme Court has long interpreted "officer" to exclude the President and Vice President because those officials are elected to their positions rather than appointed. See Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 497-98 (2010) ("The people do not vote for the 'Officers of the United States.'" (quoting U.S. Const. art. II, § 2, cl. 2)); United States v. Mouat, 124 U.S. 303, 307 (1888) ("[A] person in the service of the government" who does not "hold[] his place by virtue of an appointment . . . is not, strictly speaking, an officer of the United States."). (emphasis added).

We are very sympathetic to this argument. Indeed, we have contended for years that the President is not an "Officer of the United States." We made this point most recently two weeks ago on Lawfare. And on Lawfare, we observed that the District Court should call for the views of the Department of Justice. That observation is even more salient since Bragg stated that the Department of Justice shares his view that the President is not an "Officer of the United States."

The Executive Branch shares this view. See, e.g., Memorandum from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, U.S. Dep't of Justice to Kenneth A. Lazarus, Associate Counsel to the President, Applicability of 3 C.F.R. Part 100 to the President and Vice President 2 (Dec. 19, 1974) ("[W]hen the word 'officer' is used in the Constitution, it invariably refers to someone other than the President or Vice President. . . . This use of the word 'officer' in the Constitution has led the Department of Justice consistently to interpret the word ['officer'] in other documents as not including the President or Vice President unless specifically stated.") (Ex. 23). (emphasis added).

Tillman wrote about this Scalia memo in December 2016. 

Bragg concludes:

The Court should therefore conclude—consistent with the views of the Supreme Court, the Executive Branch, and defendant himself—that the President is not an "officer" of the United States, and thus may not invoke federal-officer removal under 28 U.S.C. § 1442(a)(1). (emphasis added).

In the short-term, Bragg's argument may harm Trump in the removal motion. If Trump is not an "Officer of the United States" for purposes of the federal removal case, then the criminal prosecution will remain in a New York criminal court. Indeed, the court could only grant the removal motion if it affirmatively finds that Trump was an "Officer of the United States." 

In the long run, such a finding, however, may have ramifications in the not-so-distant future. Specifically, Section 3 of the Fourteenth Amendment would only apply to President Trump if he took the presidential oath as an "Officer of the United States." And we have written that the President is not an "Officer of the United States" for purposes of Section 3. If Bragg is successful here, and the federal courts adopt the argument that Trump is (or was) not an "Officer of the United States" for purposes of the federal removal statute, then that precedent could be cited by Trump in debates and litigation involving Section 3. Perhaps this potential for setting precedent on this issue is even more reason to call for the views of the Department of Justice. 

There are many grounds on which the federal court can rule here. And certainly the federal district court might not reach the "officer" issue. Still, it may reach that issue, and for that reason, we will keep a close eye on this litigation in Manhattan.

Comments

[The Margrave of Azilia]

This is the perfect illustration of the gap between lawyers and nonlawyers. The idea that the President of the United States isn’t an officer of the United States is something only a lawyer could argue with a straight face. I doubt this argument would even occur to your average Joe Six-Pack.

I doubt it would even occur to Joe Several-Shots-of-Jack-Daniels, or Joe Smoked-the-Whole-Bowl.

[Voize]

When you're talking about the 14th amendment there is at least a reasoned argument why the President (or any elected official) shouldn't be included, because the decision whether to forgive or punish the individual can be left to the voters, something they don't get to do with appointed officials.

I don't see that the distinction makes sense for the removal statute however. Given that removal is limited by "for or relating to any act under color of such office", I don't see why the protection it provides should not be available to elected officials too.

[Brett Bellmore]

You could make that argument, sure, except that it flatly runs contrary to all precedent from the Reconstruction era and later.

During Reconstruction individuals subject to section 3 were routinely denied elected public office. Afterwards, Victor Berger was elected to Congress but they wouldn't seat him on section 3 grounds; He'd been convicted of espionage.

When the conviction was overturned Congress seated him.

To put the relevant precedent simply, if your state is under military occupation, anything goes under Section 3. If not, you can run, get elected, but a conviction will result in you being denied the office.

[Voize]

Members of Congress and presidential electors are expressly included by the language of the 14th amendment, suggesting that the drafters understood that "office under the United States" would not have included those positions.

[David Nieporent]

That is not, needless to say, how precedent works.

[Brett Bellmore]

Didn't say it was binding precedent. It's precedent in the sense that it's what actually happened.

[Commenter_XY]

Is there ANY elected federal office (e.g. Congress, Senate, etc) where the officeholder is not an officer of the US? I cannot think of any.

Frankly, I don't see how the DA can allude to an untried, non-criminal act as evidence, either. The moment this goes before a federal district court, it will get quashed.

To me, the 'main events' are GA (election), and obstruction of justice (docs).

[David Nieporent]

Is there ANY elected federal office (e.g. Congress, Senate, etc) where the officeholder is not an officer of the US? I cannot think of any.

Then you need to read the 10 volume series by Blackman/Tillman.

[Tom for equal rights]

It would appear to be a moot question in this case since the statute of limitations has expired for the alleged misdemeaner.

[Brett Bellmore]

And for Section 3 purposes it's moot because no evidence has been presented that Trump has engaged in insurrection or rebellion. A point Trump's foes tend to just gloss over, assuming his guilt is so self-evident that no evidence need be presented.

[not guilty]

¨It would appear to be a moot question in this case since the statute of limitations has expired for the alleged misdemeaner.¨ [sic]

The indictment alleges 34 felony counts. https://www.manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-Indictment.pdf But I suspect you knew that.

As to each count, Trump´s intent to defraud and intent to commit another crime and aid and conceal the commission thereof is an element that the prosecution must prove beyond a reasonable doubt in order to convict of a felony.

[Illocust]

Won't matter, the court will just rule he is an officer of the United States when convenient.

[JimM47]

This [Josh Blackman] post was co-authored with Seth Barrett Tillman

Would that it could always be so.

[CJColucci]

I knew there had to be an explanation.

[EscherEnigma]

... seriously?

Okay, lets ignore Bragg for a second. Do you really thnk that in the case where Trump wins the presidency in 2024, that the SCOTUS would sign onto the argument that he's disqualified under Amendment 14 Section 3? For something he's never been convicted of?

No. There are no long-term ramifications to Bragg's argument. The scenario where it matters is unbelievable. As-in, I literally cannot believe that there are 5 SCOTUS justices who would disqualify Trump under Section 3. I might buy four justices. But five? Not without multiple deaths on the SCOTUS in the next year.

There was one shot at disqualifying Trump over January 6th, and it failed. If he loses in 2024, it's not going to be because the courts said he's disqualified, it'll be because, like in 2020 and 2016, he got fewer votes then then Democrat candidate.

[Mr. Bumble]

I wonder if the drafters of the 14th Amendment had any idea as to how much work it would be called upon to do over the last 150 years?

[Brett Bellmore]

Seriously, that's not a case that's ever intended to see the Supreme court.

The assumption is that they can use Section 3, without any conviction of any sort, as a pretext to keep him off the ballot in enough states that he fails to achieve a majority in the EC. Or failing that, use it as a basis for refusing to count his EC votes.

If it ever gets to the Supreme court, they've already failed.

[Sarcastr0]

How would they keep that ballot access question out of court, Brett? Your conspiracy theory continues to have no there there.

[Brett Bellmore]

Learn to read, I didn't say that they could keep it out of the courts. I said that they would do it without a conviction. It would end up in court when Trump sued them to get on the ballot.

[Sarcastr0]

Ah. BretLaw. Where the Founders forgot the word conviction, so you read it in on their behalf.

[The Margrave of Azilia]

The precedents are a bunch of ex-Confederates...and later, a socialist who was excluded on the basis of a criminal conviction and re-admitted when the conviction was overturned.

Last I searched, I only found one book on the Berger case. Maybe it's time to blow the dust off that one and study it; so far as I know it's the only case between the ex-Confederates and Jan. 6, 2021.

[The Margrave of Azilia]

Here’s the latest:

Robert M. Lichtman, Barred by Congress : how a Mormon, a Socialist, and an African American elected by the people were excluded from office. Lawrence, Kansas : University Press of Kansas, 2022

The first guy I suppose was Reed Smoot, #2 would be Berger, and #3 would be Adam Clayton Powell.

Only Berger was Section 3.

[Kazinski]

The "founders", the reconstruction Congress, left it up to Congress to define the process. And they did by passing the insurrection act which requires a conviction.

"Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

If Congress didn't say what the process is, then there is no process, if Congress did say what the process is it has to be followed to the letter.

[ducksalad]

It'll be in court, almost certainly. Even if no state tries to do it on their own, there’s a group that plans to go around filing lawsuits to compel states to do it.

https://www.huffpost.com/entry/trump-reconstruction-ballots_n_61e0e1b3e4b0e612f6f9b630

The group lost the attempt to get Madison Hawthorn off the ballot using the same argument, but it was just one judge.

It’s not going to work but it’s effective as a harassment technique.

[Sarcastr0]

Harassment? Of Trump? That seems a losing strategy.

[Krayt]

This pretty much. The lawyer knows disqualification is, to borrow a phrase, a lathering the rubes facetious claim. Therefore he can do what he can to stop this federal removal, and there is no downside like oops Trump can't be disqualified, my bad, since that was always gonna happen.

[John F. Carr]

This is a question of statutory interpretation, not constitutional law. Who did Congress intend to allow to remove cases to federal court?

[The Margrave of Azilia]

If you mean judge the intent by the words they used, the context of the words, the use of terms of art, and when all that's still ambiguous, the needs of public policy - then I agree with going by the intent.

[John F. Carr]

The brief is worth a read for people following the case closely because it adds more detail about what Trump is alleged to have done.

Here is one argument against removal:

And federal preemption is also unavailable because the narrow preemption provision of the Federal Election Campaign Act (“FECA”) does not extend to state laws governing fraud or record- keeping—particularly when, as here, the charged offenses require proof only of general intent to conceal or commit another crime, and do not require the People to specify, let alone obtain convictions for, those other crimes; and the People’s theory does not depend solely on underlying violations of federal law in any event.

I am skeptical of the claim that the People do not need to specify what crimes have been committed to convict Trump of concealing a crime. You can't tell the jury "if Trump intended to conceal a crime..." without instructing the jury on what is or is not a crime.

[Mr. Bumble]

But it's Trump. Norms, rules and the law don't apply.

[Commenter_XY]

TrumpLaw?

[Mr. Bumble]

Of course and it keeps growing every day.

[Brett Bellmore]

"and do not require the People to specify, let alone obtain convictions for, those other crimes;"

Yeah, that's banana republic territory there, no question about it. "Trump's crimes make the alleged accounting error a state felony, but we don't have to say what those crimes are, or prove they happened!"

Only somebody utterly devoid of any sense of shame would publicly take a position like that.

[Social Justice is neither]

So you're essentially talking about every leftist in existence.

[Dave_A]

It's not bannana republic territory at all.
It's something you find in NY law after decades of experience dealing with organized crime.

The whole point (leaving politics for a second to look at organized crime), is that if Joe Balko - accountant for the 'Legitimate Gentleman's Social Club' - records $50k as 'purchase of napkins' when it was actually his boss hiring a hit-man to kill a rival gangster, *the accountant* can be prosecuted even though he did neither the hiring nor the killing (and even if the evidence to prove the murder directly doesn't exist).

To switch back to the Trump case, we already have established that felonies were committed (Cohen is a convicted felon - and the charges directly relate to the relevant hush-money payments)...

You can draw a straight line from those crimes to the falsified business records.... And to Trump benefiting from concealing the crimes of his attorney (which everyone knows were done at his behest - even if such a conspiracy hasn't been charged)...

DA just has to convince a jury of this, and Trump's first conviction will be an easy sell...

[F.D. Wolf]

Indeed. The purpose of an indictment is to give a defendant notice of the exact crime of which he is accused. If you don't know what you're accused of doing, you can't defend yourself. It's literally Kafkaesque.

For example, in Texas, burglary is defined as illegally entering a building with the intent of committing theft, assault, or other felony. If a defendant were facing a burglary indictment that stated he illegally entered a building "with the intent of committing a felony," the first thing his counsel would do is demand to know "which felony?" and move to quash the indictment for failure to give notice, and that motion would almost certainly be granted.

[Michael Ejercito]

One would think that if you are going against someone rich and/or powerful, you would make sure you had everything assembled tight, resting on a foundation of the solidest legal theories and the solidest precedents.

Bernie Madoff's prosecutors sure made sure that every legal argument rested upon the soldiest foundation possible before they went after him.

This looks like a completely rookie mistake.

[Brett Bellmore]

If you were assuming that Bragg is aiming for a charge that would persuade a disinterested jury, and a conviction that would stand up on appeal, sure.

If he's just looking to smear some shit on Trump going into an election? I don't see the mistake.

[Noscitur a sociis]

It seems pretty clear that Bragg is correct that New York law does not require the prosecutor to specify the target crime in a situation like this. See People v. Mahboubian, 543 N.E.2d 34, 44 (1989). I think there are a lot issues with this prosecution, but this is not one of them.

[David Nieporent]

Don't be stupid, N a s; you can't bring actual law into a discussion with Brett. He has feelings about what the law should be, and that's all that matters.

[Dave_A]

The crime is falsifying business records for corrupt purposes (to conceal commission of a felony).

The law does not require that the accused be charged-with, notified-of, or convicted-of the predicate offense. They don’t even have to be the person who committed said offense (Eg, Trump can be charged for helping conceal Michael Cohen’s crimes).

Just that the motivation for falsifying records be to conceal one.

The jury gets to decide whether or not it exists - if they believe it does not exist, then they can base their verdict on that.

[F.D. Wolf]

While the President may not be an "officer of the United States" under the language of the Constitution, he likely is under the statute. For example, members of Congress are not "officers of the United States" under the Constitution, but several courts have held that they are under 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).

[Krayt]

Congress can pass a law to remove employees. They can’t pass a law to say you don’t get to be a pr3sident no more.

(Blather)

“But passing a law to term limit Congressmen overrides that only the constitution defines qualifications, and so should be thrown out for that reason. You can clearly see the difference as to why Congress can do that to the president!"

[Dave_A]

'Removal' in the case of this law means transferring a criminal case from state to federal court.

Not removal from office.

[jimc5499]

I'm pretty sure that they used being an Officer of the United States to shield FDR from the interment of Japanese Americans during WWII.

[David Nieporent]

This whole discussion is a Blackman red herring that just allows him to tout his/Tillman's verbal diarrhea on the subject.

The case can't be removed whether or not Trump was an officer of the U.S. because the crime he was charged with was not committed under color of his office. It was not an act of the office of the presidency to forge private business records.

[Noscitur a sociis]

To be fair, this likely is the acme of the theory, even if it comes in the form of a throwaway line that the lawyer can’t even bring himself to fully endorse, and one which the court probably won’t even mention as it relies on the much stronger and clearer bases to reject removal.

[Brett Bellmore]

Oh, yeah, Trump's argument for removal is a joke.

Morally speaking, the joke is a response to a joke indictment, but it's still a joke.

[Kazinski]

Take it up with Bragg not Blackman.

[Darth Buckeye]

For the progressives and Dems, the law does not matter; all that matters is getting Trump. This will be a special, rare fact pattern that will only be applied to presidential candidates or elected presidents who "literally" are Hitler. Since every Republican presidential contender "literally" is Hitler, this special, rare fact pattern will apply every four years.

[Dave_A]

If that were true, George W Bush would have been prosecuted.

The fact is Trump is a uniquely awful individual – a life-long white-collar criminal (and not a very good one at that) who conned his way to the Republican nomination (despite being a pretty solid leftist in terms of personal views - and running on the most left-wing platform since Eisenhower).

It’s his own inability to play by the rules that landed him here… Not anything related to ‘Democrats’.

[Dave_A]

It seems a better argument would be that since Trump was not President when the actual cover-up occurred, and is not President now, he cannot avail himself of the removal statute (which should only cover serving officials).

[apm247]

He is a man who certainly enjoys arepas