SDNY "Believe[s]" In Dictum That President An "Officer of the United States" for purposes of Federal Officer Removal Statute

"I believe that the President should qualify as a "federal officer" under the removal statute but, as is evident from the discussion below, the proposition is dictum, unnecessary for the decision that I reach."

In May, Seth Barrett Tillman and I discussed on Lawfare whether the President was an "Officer of the United States" for purposes of the federal officer removal statute. The New York District Attorney argued that Trump was not an "Officer of the United States." And Trump countered that he was an "Officer of the United States"--at least for purposes of the federal officer removal statute.

Today, the District Court granted the District Attorney's motion to remand the case to the Federal Court. There are three paragraphs that discuss this "officer" issue:

The parties assume, and I hold, that Trump, although not presently a federal officer, can remove a case otherwise qualified for removal. It would make little sense if this were not the rule, for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority.

The more difficult question is whether a President is an "officer … of the United States" within the meaning of§ 1442(a)(l). The People argue that the Supreme Court has interpreted federal statutes referring to an "officer of the United States" to include appointed, but not elected, officers. See Free Enter. Fund v. Public Co. Acct. 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."). Trump notes that the D.C. Circuit previously allowed him to remove a civil action to federal court under § 1442 while in office, K&D LLC v. Trump Old Post Off LLC, 951 F.3d 503, 505 (D.C. Cir. 2020), and cites to several cases permitting federal officer removal for elected members of Congress, see Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 412-415 (D.C. Cir. 1995); Williams v. Brooks, 945 F.2d 1322, 1324 n.2 (5th Cir. 1991); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988).

I believe that the President should qualify as a "federal officer" under the removal statute but, as is evident from the discussion below, the proposition is dictum, unnecessary for the decision that I reach.

It is unusual for an opinion to use the verb "believe," rather than conclude or determine. There is also no analysis here. I'm not sure how much weight we can place in this dictum, if any.

In any event, the issue is clearly preserved for appeal. (Remember, remand orders for the federal officer removal statute can be appealed.)

Comments

[mse326]

"Today, the District Court granted the District Attorney's motion to remand the case to the Federal Court."

That doesn't even make sense and is indeed incorrect. The motion was for remand to the NY Supreme Court (it's trial court)

[loki13]

He's a law professor. You can't expect him to know fine legal distinctions that only practitioners would know ... like the difference between, um, state and federal courts.

[David Nieporent]

This is silly. This is an obvious typo. It reflects not ignorance but lack of care because proofreading takes time and all he wants to do is rush to churn out more dumb posts about how Barrett/Kavanaugh/Roberts aren't Real Conservatives™ because they don't vote for a return to the Spanish Inquisition.

[loki13]

You are in a charitable mood!

Having to choose between Blackman being ignorant of a basic legal issue, or Blackman not noticing that he made such a stupid error in yet another Torrent of Nonsense ….

I’d go with both? ????

[Noscitur a sociis]

In any event, the issue is clearly preserved for appeal. (Remember, remand orders for the federal officer removal statute can be appealed.)

The party arguing that the president is not an officer won, so they cannot in fact appeal.

[not guilty]

Donald Trump can appeal the remand order, and the New York DA can raise the contention that the president is not an officer for purposes of the removal statute in response.

[Noscitur a sociis]

While that is true, there was no requirement that they preserve anything to be able to do so.

[Bored Lawyer]

I very much doubt the Second Circuit will go there. The reasoning of Judge Hellerstein applies only to Trump and only this case. The alternative reasoning -- that an elected official is not an Officer of the U.S. -- has far broader application, and is problematic in its own right, as I comment below. Much easier to affirm on the narrow grounds.

[CJColucci]

"Conclude" or "determine" are certainly more pompous than "believe," but "believe" seems to be a more honest and straightforward description of what Judge Hellerstein is actually doing and trying to say.

[The Turtle Dove]

It's not unequivocally dicta. The holding is the bare chain of reasoning necessary to support the order, here a positive action of remand. And the statute says "color of such office." If the statute said "(1) officer for (2) acts committed on a Wednesday", establishing that the act was on a Thursday would make the determination of (1) dicta.

But you can't trace the color of the office without holding that there is an office, and precisely what that office is. Is it as head of state? Only when ensuring faithful execution of the laws? You have to have a field X to determine whether point Y is within it. Logically, you can't reach the order without there being a certain officer-field.

Admittedly, there is this vague notion called "the Presidency", but any field that can encompass pardoning turkeys and deciding how many bombs to order in a given fiscal year is arguably ill-defined.

Mr. D.

[David Nieporent]

But you can’t trace the color of the office without holding that there is an office,

No, that's not so. If there's a law that says (1) officer for (2) acts committed under color of office, a court can assume that the first element is satisfied for the sake of deciding that the second element isn't.

[The Turtle Dove]

That's only true in the abstract, in the sense that you can look down a path and say, "okay, even if I were to walk the next two miles, the path is blocked after that." But the point is that you can't decide that the acts aren't within the color of office without deciding what the office is. In the path analogy, you'd have to choose a vector before deciding that it gets blocked down the road.

And since that characterization of the office as an office is necessary to the holding that the acts aren't within the color of the office, it's not unequivocally obiter dictum.

Mr. D.

[David Nieporent]

The question isn't "what the office is." We know what the office is. The question is whether the office is an Office.

[Jason Cavanaugh]

Blackman, you dumb fuck, you didn't even make it to the bottom of page 1?

"The issues have been fully briefed. I heard arguments and conducted an evidentiary hearing on June 27, 2023. I hold that there is no subject matter jurisdiction, that § 1442(a) was improperly invoked, and that the case is remanded to the New York Supreme Court for further proceedings in that court. "

[Rev. Arthur L. Kirkland]

Prof. Blackman wrote:

Today, the District Court granted the District Attorney's motion to remand the case to the Federal Court.

Do you contend that is inconsistent with the court's statement?

I hold that there is no subject matter jurisdiction, that § 1442(a) was improperly invoked, and that the case is remanded to the New York Supreme Court for further proceedings in that court. “

(Before answering, you should recall that Prof. Blackman is a law professor, a frequent Federalist Society expert, and a leading author at the nation's premier right-wing legal blog.)

[Jason Cavanaugh]

The NY Supreme Court is a STATE TRIAL COURT.

Not a Federal Court.

You should recall that Blackman is a partisan moron, and that you know nothing of anything discussed here aside from your endless complaints about whatever the hell your normally-muted comments contain.

[loki13]

In fairness, I think that Rev. Kirkland was agreeing with you and was mocking Josh Blackman. Try reading it again and noting the listing of credentials.

[Rev. Arthur L. Kirkland]

Ah, let him go on, loki13. Most of these guys seem to like being credulous and enraged. This might be the only fun left to them in modern America.

[Rev. Arthur L. Kirkland]

and that you know nothing of anything discussed here

I concede I was not nearly up to speed on crucial issues involving drag queens, transgender parenting, lesbians, transgender sorority drama, Muslims, white grievance, modern usage of vile racial slurs, adrenochrome, Jewish space lasers, transgender rest rooms, white supremacy, backwater resentment, and the like until I found this blog.

[Dr. Ed 2]

The real issue here is Section 3 of the 14th Amendment:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States... shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof..."

If they deny Trump the Presidency on this basis, all bets are off...

[Rev. Arthur L. Kirkland]

If they deny Trump the Presidency on this basis, all bets are off…

Would Trump supporters become even more unhinged, disaffected, delusional, and whiny?

[David Nieporent]

The real issue here is Section 3 of the 14th Amendment:

The real issue here has absolutely nothing whatsoever to do with Section 3 — or any other section — of the 14th amendment.

[Dr. Ed 2]

Dream on, David. Legal technicalities have become irrelevant.

I fear for the future of our republic -- and you should too!!!!

[loki13]

I, too, fear for the future of our Republic when "legal technicalities" (you know, the rule of law) are irrelevant.

[Noscitur a sociis]

When you say "here" and "they", what exactly are you envisioning?

[Dr. Ed 2]

The end of democracy as we have known it.

The Dems are playing with gasoline, and I don't think they quite realize it...

[mse326]

It's the Dem DA that is saying he isn't an officer and thereby the 14th A wouldn't be applicable

[Bored Lawyer]

The judge here has to be correct in his dictum. Otherwise, a state could prosecute the president for acts taken as president. They could indict him for crimes committed in prosecuting a war, for example. That is the very purpose the removal statue was enacted -- to have a federal court deal with these issues.

(FWIW, I also agree that Trump's actions were not under color of his office.)

So the right result for the right reason.

And whether Trump is an "officer" for the purposes of Section 3 of the 14th Amendment is a different question. The same word need not have the same meaning in the two provisions, which have entirely different purposes.

[David Nieporent]

Frankly, I thought it was stupid of Bragg to even raise the argument. He was so obviously going to win on the "under color of such office" standard — nothing about the case has anything remotely to do with the office — that all he did was weaken that argument by including it with a dubious, long shot one like this.

[Bored Lawyer]

Many lawyers throw everything against the wall to see what sticks, whether it's strong or weak. I agree with you that if you can't win on your best argument, you are not going to win on your worst. But most lawyers don't agree.

[Krayt]

For three years: He’s an officer of the United States, and so cannot run again!

Now: He’s not, so it cannot be removed!

And the other side the opposite.

If this doesn’t describe improper political motivation in using the power of government to go after political opponents, I don’t know what else to say.

Wait another 20 years, if I should live that long, and see the shoe back on the other foot, with Republicans investigating endlessly and with a special prosecutor, while Democrats hem and haw?

Well, there should be at least two to three more Star Wars trilogies to look forward to.

[David Nieporent]

For three years: He’s an officer of the United States, and so cannot run again!

Now: He’s not, so it cannot be removed!

And the other side the opposite.

I don't know who you're pretending to quote here, but as someone above noted, whether he's an officer as that term is used in the 14th amendment has nothing to do with whether he's an officer as that term is used in this statute.

[alliehuesa]

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