Can a state criminal case get transferred to federal court?

Today we’re going to law school. Because we’re going to need this in the next couple of weeks! The topic is 28 U.S.C. (United States Code) sections 1442 and 1455, which set forth a procedure for moving a criminal indictment brought in state court to federal court “for good cause shown.” This is referred to as “removal,” and although it is attempted with some frequency in civil cases, it is rather rare in the criminal context.

The idea of transferring a criminal case from one prosecuting entity to another seems a little counterintuitive. The federal government and a state like, say, Georgia, are separate sovereigns with entirely different criminal codes. For instance, Georgia has any number of crimes that aren’t found in the federal criminal code or that have different elements of proof, including some that could be charged in a prosecution centered on the 2020 election.

But here’s the provision in the federal code that makes it possible:

28 USC 1455(a) Notice of Removal: A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal…

The rule requires a defendant to file a motion to remove within 30 days from the time they are arraigned (when the charges are formally read against them for the first time and they are put on notice they’ve been charged) in state court. It requires the federal district judge to review the motion promptly and, “if it clearly appears on the face of the notice…that removal should not be permitted,” to send the case back to the state court, where the prosecution can continue. If the district court can’t make a determination based just on the motion itself that the case belongs back in state court, the rule directs it to promptly hold a hearing, listen to the evidence, and “make such disposition of the prosecution as justice shall require.” If the federal court decides the case should be removed, it notifies the state court, and the rule directs that the state court can “proceed no further.”

We’re obviously contemplating this possibility in the context of what is widely believed to be an “imminent” prosecution in Fulton County, Georgia, that could reach (either immediately or in a later stage), former President Donald Trump. Would Trump be able to remove a state prosecution to federal court under the statute? Would he want to do that? Could this affect any other potential defendants? We’ll take up each of these questions in turn.

Would Trump be able to remove a state prosecution to federal court under the statute?

While section 1455, which is set out above, lays out the procedure for removing a case, a defendant would still need to make the substantive argument that they’re entitled to remove it. The path Trump would use is found in 28 U.S.C. 1442. It provides that one category of people who can remove a criminal prosecution from state to federal court includes officers of the United States or anyone acting under their direction “for or relating to any act under color of such office.” That phrase means that the a defendant must have been acting within the scope of their official duties when they did whatever they are now criminally charged with.

This provision is grounded in historical concerns that state officials might try to interfere with the work of the federal government. Congress passed the “federal officer removal” statute to prevent state and local prosecutors, who might hold some prejudice against federal officials, from having sole control of proceedings against them. Today, removal seems to come up most frequently in cases involving federal law enforcement officers who are charged in state criminal cases, like this case from Fulton County, Georgia, last year. But presidents, too, are federal officials and could seek the benefit of the statute for conduct falling within their official duties.

Which, of course, is likely to be the fight here, with Trump arguing he was pursuing a legitimate election outcome as part of his official duties. Under Section 1442(a), a defendant must show both that they are the kind of person identified in the statute, involved in performance of official duties, and also that they have a “colorable” federal defense. In Trump’s case, that that colorable defense would most likely would mean he would argue that he had some type of immunity from prosecution, as a federal official.

The easiest way for the Fulton County district attorney’s office to dispose of any removal motions would be to convince the federal court that the conduct here fell far outside the scope of official duties. That’s one of the reasons the investigative grand jury’s unanimous finding that fraud did not taint the outcome of the Georgia election may end up being so important. If Trump makes a motion to remove, state prosecutors are likely to argue Trump was not pursuing any legitimate work on behalf of the federal government when he called Georgia Secretary of State Brad Raffensperger and asked him to “find” the precise number of votes he needed to win the state or when he green-lit the fake elector scheme and asked the judge to summarily return the case to state court.

Trump’s statement following the partial release of the report hints at what he might offer. (Or maybe it’s just a coincidence.) He wrote, “The President participated in two perfect phone calls regarding election integrity in Georgia, which he is entitled to do—in fact, as President, it was President Trump’s Constitutional duty to ensure election safety, security, and integrity. Between the two calls, there were many officials and attorneys on the line, including the Secretary of State of Georgia, and no one objected, even slightly protested, or hung up. President Trump will always keep fighting for true and honest elections in America!”

It’s hard to predict how a federal judge would handle such an unusual and high-profile request for removal. But it seems reasonable that they might choose to hear some evidence. While a defendant doesn’t have to prove that their defense would succeed to obtain removal, they do have to show that it’s colorable, or that it’s reasonable, not entirely speculative. And, they do have to establish that they were an official involved in the performance of official duties. Trump’s statement above is wrong. Raffensperger pressed back against his allegations of fraud throughout the call, even as Trump threatened that he might find himself the subject of criminal prosecution. Trump is inaccurate when he says the president is responsible for elections. They are conducted by the states, which, including Georgia, certified the accuracy of their results. That’s just the tip of the iceberg, but this does not look like a winning argument for Trump, at least in this form.

Would he want to do that?

Why would a defendant prefer a federal trial? In its historical context, the statute makes sense. A federal defendant might believe he would get an impartial trial from a federal judge, if there was monkey business afoot with state prosecutors. Or there could be more pedestrian reasons: a defendant might prefer (or prefer not to have) a state jury drawn exclusively from Fulton County, as opposed to one drawn from the Northern District of Georgia, which includes a broad swath of Georgia’s more conservative northernmost counties.

A defendant might like the judge prospects in one jurisdiction better than another. But, as a practical matter, there are 11 active and seven senior judges in North Georgia, and assignment of cases is random. Trump would be taking potluck and facing, if there was an appeal, an 11th Circuit that resoundingly criticized his lawsuit challenging the execution of the search warrant at Mar-a-Lago.

So it’s possible that, if indicted, Trump won’t seek removal. But his history as a litigant is all about delay and injecting uncertainty into legal processes. Seeking removal here would certainly do that. There would be delay involved in removal proceedings, even if the federal court complied with the statutory direction to act “promptly.” Some of the issues could require factual and legal development, particularly if Trump raised unique immunity arguments, which, though likely not meritorious, would need to be briefed and considered. Trump is notorious for trying to twist the protections the legal system provides to litigants into swords he uses to win. In a criminal case with his liberty at stake, it’s certain he’d leave no prospect for delay or dismissal untested.

Could this affect any other potential defendants?

All of this becomes still more interesting in light of today’s leak of information from the foreperson of the Fulton County grand jury, which suggests there may be a long list of potential defendants for the district attorney to consider charging. As a prosecutor, I don’t love seeing a grand juror speaking out about proceedings, even if they’re technically entitled to offer some personal opinions. It creates more opportunity for defendants to make arguments to dismiss in advance of trial (although I’ve seen nothing here yet that convinces me that’s a realistic prospect) and on appeal. The prospect of losing a case years down the road because of something like this is every prosecutor’s nightmare.

But, that aside, could we see a rash of defendants trying to remove cases from state to federal court? The provision that arguably applies to Trump could also apply to others who are federal officers/employees, or to people acting under their direction. Although the provision has been interpreted more frequently in civil cases than in criminal ones, it’s usually viewed expansively, so people who weren’t White House employees but who were acting at the direction of someone who was could argue they’re entitled to remove their cases.

However, their success would be dependent upon that of the federal official they took direction from—let’s use Trump as a convenient example, for argument’s sake. If he did not qualify for removal under the provision, it seems unlikely that someone acting under his orders would. Likely, this would be more about messy, time-consuming proceedings before a prosecution could proceed in state court. And, there is a subsequent part of the statute that allows removal for, “any officer of either House of Congress, for or relating to any act in the discharge of his official duty under an order of such House.” So, some additional possibilities there.

Whether removal motions are ultimately successful or not, they will inject more confusion and delay into any proceedings. We should be prepared for that. Defendants, in our justice system, are entitled to test indictments against them and use procedures to limit evidence or charges, or even, as would be possible here, try to remove a state case into federal court. Be reassured, not concerned, if we see the criminal justice system at work if there are indictments in Georgia. The 11th Circuit, the federal court that would hear any appeals on a removal motion, has had recent experience with the former president and seems to have taken his measure as a litigant. Our best tools will be knowledge and careful analysis, and we’ll work through any developments here at Civil Discourse, as they happen.

We’re in this together,

Joyce

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