A quick and dirty overview of how the federal officer removal statute, as interpreted by the Court, maps onto the latest indictment of former President Trump on state criminal charges in Georgia
Can you explain why Meadows has “supremacy clause immunity?” Wouldn’t there have to be a federal statute that says it is ok to plot to overthrow the government? If the issue is the broader Federal RICO law, how does that in itself grant “immunity?” Can Willis end run that by simply taking him out of the RICO part of the case and charge him just with conspiracy under state law?
"But perhaps the real takeaway here is that removal is largely a sideshow."
A sideshow it may be, but as a delaying tactic, it's another opportunity for indictees to slow-walk legal proceedings against them. Let's see how expeditiously the federal district judge hearing the case, Steve Jones, handles the motion, no doubt the first of several to be filed, including one by tRump himself. Also, if the judge rules against the remove motion, is it appealable?
The Grace v Miami thing has gotten very little coverage and it seems like it’s important? I guess the VRA is truly dead when the racist voter maps are considered the normal ones?
This is marvelous, and I thank you for writing and posting it, Prof. Vladeck.
Your footnote 1 catches my eye. Certainly the whole case as to all defendants stays in federal court for a section 1442(a)(1) federal-officer removal in a multidefendant civil case:
===begin quote===
This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The Congressional policy permitting federal officer removal could easily be frustrated by simply joining non-federal defendants unwilling to remove if consent of co-defendant(s) were required. Thus in Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960), the Second circuit ruled that "[t]he `general government' must be able to assure each of its officers that a federal forum will be available if he wishes it, whether others sued with him wish it or no." Likewise, in Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965), the Fifth circuit held "it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court." In Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981), the Ninth circuit reasoned that "[s]ince the federal officer is the only one entitled to remove under § 1442, he alone can remove without other defendants joining in the petition, and the entire case is removed to the federal court." In City of Aurora v. Erwin, this court noted the importance to the United States and the absolute nature of federal officer removal jurisdiction, quoting the Supreme Court that exercise of such jurisdiction "`should not be frustrated by a narrow, grudging interpretation.'" 706 F.2d 295, 296 (10th Cir.1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the foregoing, we hold that G.E. properly removed the case to federal court without the consent of co-defendants.
I've found nothing on this point from a section 1442(a)(1) removal of a state criminal case, and if there is no precedent, I suppose nothing is self-evident. But it's the very same statute. Why would there be a different standard for criminal and civil cases removable under the same statute? And aren't the policy arguments that support this rule for civil removals equally, or even more, urgent in the context of criminal removals?
It seems to me that Meadows has the better of this argument, and that his is the only officer status, "acting under" analysis, or federal defense that counts.
Is there a substantial silver lining for DA Ellis in federal court by virtue of the fact that she'd gain nationwide subpoena powers, rather than having to go through the interstate compact to compel testimony and evidence from out-of-state witnesses?
Did you notice that Meadows let no time run off the clock, but filed his removal notice on the morning after the indictment was announced? By contrast, Trump let the full 30 days go by before removing Bragg's indictment. A stall-opportunity was wasted. And Meadows' merits motion to dismiss is already on file too. His speaking removal notice (first one of those I've seen) took care to avoid waiving anything, as Trump's notice was held to have done in the SDNY remand. None of which to say Meadows has flipped, or will flip. But they're not acting in sync.
I desperately hope that the GA case stays in federal court, if only to deprive Trump of the circus opportunities TV in the courtrooms creates. In my civil practice, I've found courtrooms to be Kryptonite to a lot of the normal con-man bullsh!t, and of course he can't treat a judge the way he's treated debate moderators, lest he end up in shackles and a gag. But TV in the courtroom would give him a renewable con-man powerup, and tilt the playing field to the reality TV star's benefit.
I'm looking forward to your continuing thoughts on these fed-courts brain-twisters.
Can you explain why Meadows has “supremacy clause immunity?” Wouldn’t there have to be a federal statute that says it is ok to plot to overthrow the government? If the issue is the broader Federal RICO law, how does that in itself grant “immunity?” Can Willis end run that by simply taking him out of the RICO part of the case and charge him just with conspiracy under state law?
"But perhaps the real takeaway here is that removal is largely a sideshow."
A sideshow it may be, but as a delaying tactic, it's another opportunity for indictees to slow-walk legal proceedings against them. Let's see how expeditiously the federal district judge hearing the case, Steve Jones, handles the motion, no doubt the first of several to be filed, including one by tRump himself. Also, if the judge rules against the remove motion, is it appealable?
If it a sideshow, why do it?
The Grace v Miami thing has gotten very little coverage and it seems like it’s important? I guess the VRA is truly dead when the racist voter maps are considered the normal ones?
This is marvelous, and I thank you for writing and posting it, Prof. Vladeck.
Your footnote 1 catches my eye. Certainly the whole case as to all defendants stays in federal court for a section 1442(a)(1) federal-officer removal in a multidefendant civil case:
===begin quote===
This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The Congressional policy permitting federal officer removal could easily be frustrated by simply joining non-federal defendants unwilling to remove if consent of co-defendant(s) were required. Thus in Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960), the Second circuit ruled that "[t]he `general government' must be able to assure each of its officers that a federal forum will be available if he wishes it, whether others sued with him wish it or no." Likewise, in Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965), the Fifth circuit held "it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court." In Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981), the Ninth circuit reasoned that "[s]ince the federal officer is the only one entitled to remove under § 1442, he alone can remove without other defendants joining in the petition, and the entire case is removed to the federal court." In City of Aurora v. Erwin, this court noted the importance to the United States and the absolute nature of federal officer removal jurisdiction, quoting the Supreme Court that exercise of such jurisdiction "`should not be frustrated by a narrow, grudging interpretation.'" 706 F.2d 295, 296 (10th Cir.1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the foregoing, we hold that G.E. properly removed the case to federal court without the consent of co-defendants.
===end quote===
Akin v. Ashland Chem. Co., 156 F.3d 1030 (10th Cir. 1998). Link: https://scholar.google.com/scholar_case?case=14937677239245682991
I've found nothing on this point from a section 1442(a)(1) removal of a state criminal case, and if there is no precedent, I suppose nothing is self-evident. But it's the very same statute. Why would there be a different standard for criminal and civil cases removable under the same statute? And aren't the policy arguments that support this rule for civil removals equally, or even more, urgent in the context of criminal removals?
It seems to me that Meadows has the better of this argument, and that his is the only officer status, "acting under" analysis, or federal defense that counts.
Is there a substantial silver lining for DA Ellis in federal court by virtue of the fact that she'd gain nationwide subpoena powers, rather than having to go through the interstate compact to compel testimony and evidence from out-of-state witnesses?
Did you notice that Meadows let no time run off the clock, but filed his removal notice on the morning after the indictment was announced? By contrast, Trump let the full 30 days go by before removing Bragg's indictment. A stall-opportunity was wasted. And Meadows' merits motion to dismiss is already on file too. His speaking removal notice (first one of those I've seen) took care to avoid waiving anything, as Trump's notice was held to have done in the SDNY remand. None of which to say Meadows has flipped, or will flip. But they're not acting in sync.
I desperately hope that the GA case stays in federal court, if only to deprive Trump of the circus opportunities TV in the courtrooms creates. In my civil practice, I've found courtrooms to be Kryptonite to a lot of the normal con-man bullsh!t, and of course he can't treat a judge the way he's treated debate moderators, lest he end up in shackles and a gag. But TV in the courtroom would give him a renewable con-man powerup, and tilt the playing field to the reality TV star's benefit.
I'm looking forward to your continuing thoughts on these fed-courts brain-twisters.
Love your work! Thank you!