Renegade Removal

Will Fulton County Retain Control of the Case Against Former President Trump?

No man is above the law, and no man is below it.” Teddy Roosevelt.

While lawyers and law students alike are familiar with the process of removing civil actions from state to federal court based on either diversity of citizenship, or implication of a question of federal law, far fewer are aware that a similar process can be utilized for a specific set of criminal cases pending in state court.

While criminal charges are pending against a former president in multiple state courts, the exact requirements for the removal of criminal cases warrant discussion. Stated succinctly, the removal of criminal cases is available to certain federal agencies and officials when acting under the color of office or law to prevent state and local officials from interfering with the orderly administration of the federal government and prevent states from undermining federal policies by prosecuting federal agents.

28 U.S.C.A. § 1442 governs the removal of state court actions pending against federal agencies and officers and allows for removal where a federal officer can mount a “colorable federal defense” based on the performance of their duties as an officer of the United States or relating to any act taken under color of law.  (Mesa v. California, 489 U.S. 121 (1989)).

Therefore, three elements must be present in order to allow for the removal of state criminal actions to federal court:

  1. The defendant charged is a federal agency or agent or acting under the direction of said agency or official
  1. The acts leading to charges were performed or related to officials’ acts under the color  of office or law
  1. The defendant can forward a “colorable federal defense” to the crimes charged

First, that the defendant charged to be a federal agency or agent merits little discussion. It is, however, worth noting that the definition extends to federal contractors and may be stretched further to include the attorneys of federal officials and agencies, although not directly employed by the federal government.

In the case of state charges pending against former President Donald J. Trump, the first element is clearly satisfied; the president is an official of the federal government.

Second, that the actions deemed criminal were performed under the color of office or relate to actions taken under the color of office is a narrower needle to thread. While the Supreme Court has recognized, “[t]he ordinary meaning of the[ ] words [‘relating to’] 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.’ ” (Morales v. Trans World Airlines, Inc., 504 U.S. 374, (1992)), a previous attempt by Trump to removal criminal actions stemming from alleged payments made to adult film star, Stormy Daniels, was deemed unrelated to the color of office and instead was taken in the former president’s personal capacity.

“Trump has failed to show that the conduct charged by the Indictment is for or relating to any act performed by or for the President under color of the official acts of a President.” (New York v. Trump, No. 23 CIV. 3773 (AKH)(S.D.N.Y. July 19, 2023)). It is unclear whether the conduct resulting in criminal charges in Georgia State Court was taken under the color of law. Still, it seems likely that issues related to election integrity more closely resemble official acts than alleged hush money payments made to an adult film star. Still, it remains uncertain whether a federal judge will find this element satisfied. Due to the broad language of the statute authorizing removal, it is certainly possible that Trump will clear this threshold. The disposition of the second element likely hinges on whether Trump was acting as president or candidate in his efforts to obtain a favorable outcome in the 2020 election. 

Third and finally, asserting a “colorable” defense is a very low standard and requires only that the federal defense asserted not be manifestly “immaterial” or “wholly insubstantial and frivolous.” (Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020)).

In short, unless a federal defense is asserted solely to obtain jurisdiction and is clearly unsustainable on its face, the standard is satisfied, and the action will proceed in federal court. It is yet unclear what defenses will be asserted by the former president, but based on past comments, a broad claim of executive immunity is likely to surface. The colorability of such a defense is beyond the scope of this post but will likely be addressed by the judiciary in the near future.