Every law student learns that state civil cases may be “removed” to federal court under certain conditions – usually when the case presents a question of federal law, or the parties are residents of different states. See 28 U.S.C. § 1446. But until recently, I had never heard of a state criminal case being removed to federal court. Former President Trump and several members of his administration have requested exactly that, and there are federal statutes that allow for it under limited circumstances. This post digs a little more deeply into the removal of criminal cases.
What are the relevant statutes? Removal is possible under at least 28 U.S.C. § 1442 (covering criminal prosecutions of federal officers or agencies for acts performed under the color of their offices); 28 U.S.C. § 1442a (covering criminal prosecutions of members of the armed forces for acts performed under the color of their offices); and 28 U.S.C. § 1443 (covering criminal prosecutions that implicate certain civil rights issues; but note that the potentially broad sweep of this statute was limited by judicial interpretation in City of Greenwood v. Peacock, 384 U.S. 808 (1966)).
What is the procedure for removal? The procedure for the removal of state criminal cases to federal court is set out in 28 U.S.C. § 1455. It says that a defendant seeking removal must do so promptly – generally within 30 days of the state court arraignment. The defendant simply files a notice of removal in federal court. If the basis for removal is obviously deficient, the federal court can remand the case to state court without a hearing. If it’s unclear whether removal is justified, the federal court can hold a hearing to address the issue, and to allow removal if warranted under the law.
Why is removal allowed? Historically, the removal of criminal cases was authorized because of a fear that state court proceedings would be used to prosecute federal officials for just doing their jobs. If state officials can prosecute federal officers in state court “for an alleged offense against the law of the State, yet warranted by the Federal authority they possess,” then “the operations of the general government may at any time be arrested at the will of one of its members.” Tennessee v. Davis, 100 U.S. 257 (1880). Put differently, removal serves to “protect the Federal Government from the interference with its operations that would ensue were a State able, for example, to arrest and bring to trial in a State court . . . officers and agents of the Government acting within the scope of their authority.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142 (2007) (cleaned up). Congress apparently believed both that the federal courts will give such defendants a fairer shake, and that such defendants may have access to certain defenses and immunities in federal court that they may be unable to assert in state court.
This purpose is consistent with the limitation in sections 1442 and 1442a that the defendant must have been acting under color of his or her office for removal to be justified. The mere fact that a person is a federal official does not entitle the person to removal of state prosecutions for impaired driving, domestic violence, or other conduct that does not arise from the person’s official duties. A frequently-litigated issue relating to removal is whether the conduct in question was or was not performed under color of office.
If removal is allowed, what happens? If removal is permitted, the prosecution of the state crimes moves to federal court. The applicable substantive law remains state law. In other words, the crimes remain state offenses, with state elements. But the procedures that apply are federal procedures, including the Federal Rules of Criminal Procedure, and federal defenses and immunities are available. As best I can tell, the state prosecutor continues to prosecute the case, rather than the federal prosecutor taking over. The jury is drawn from the entire federal district, not just from the county where the charges originated, and a desire to obtain a different jury pool may motivate some defendants to seek removal. (For example, in the Georgia cases against former President Trump and his associates, a state jury would be drawn from the more liberal Atlanta metropolitan area while a federal jury would be drawn from a larger federal district that includes not just Atlanta but also many rural areas with a greater percentage of conservative residents.)
Until the federal court has decided whether to allow removal, the state court prosecution continues, up to a point. 28 U.S.C. § 1455(b)(3) says: “The filing of a notice of removal . . . shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.” But if removal is allowed, the state court loses authority. See 28 U.S.C. 1455(b)(5) (“If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.”).
How has the statute been invoked recently? Yes. Specifically, as noted above, it has been invoked by former President Trump and several members of his administration.
Earlier this year, President Trump sought removal of a New York criminal case charging him with falsifying business records related to his alleged payoff of adult film actress Stormy Daniels. A federal district court judge conducted a hearing, then remanded the case to state court, finding that the alleged payoff was not committed under color of President Trump’s office: “The evidence overwhelmingly suggests that the matter was a purely a personal item of the President – a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a President’s official acts. It does not reflect in any way the color of the President’s official duties.” I believe that President Trump has appealed the judge’s ruling.
More recently, President Trump’s former Chief of Staff (and former United States Representative from North Carolina), Mark Meadows, sought removal of state criminal charges brought against him in Georgia. You can read his notice of removal, which contains his argument for why removal is proper, here. As most readers likely know, the Georgia charges generally relate to alleged efforts to interfere with or overturn the results of the 2020 presidential election. Meadows argues in his notice of removal that any actions he took were in connection with his role as Chief of Staff and were an effort to ensure election integrity. Compared to President Trump’s effort to remove the New York case, Meadows’ argument strikes me as much more plausible. But it is far from a slam dunk. Ensuring election integrity sounds like something a president or members of his staff might possibly do, but Harvard Law Professor Laurence Tribe and two other prominent lawyers argue here that the president and his staff have no constitutional role in overseeing presidential elections. Even if ensuring election integrity is a proper role for presidential aides, there may be a line between legitimate election integrity activities and baseless election obstruction, and I would expect the prosecutor in the Georgia case to argue that the defendants crossed it.
Conclusion. The federal judge considering Meadows’ removal request plans to hold a hearing on the matter today. We’ll see how things play out, including whether former President Trump tries to remove the Georgia charges himself, as many experts think he will. In the meantime, if anyone asks you at a cocktail party what the deal is with the attempted removal of state criminal charges to federal court, now you know.