Triggered by the news that Trump is seeking to have his state charges moved to Federal Court - I’d like to have a discussion, purely on the issue of Federal Court jurisdiction, please.
Question : on what basis can a Federal Court assume jurisdiction over state criminal charges? I’ve never heard of this before, and don’t remember anything from my class on Federal Court juridiction that touches on it.
Diversity jurisdiction in civil matters I get, but where does an Article III court havé
Constitutional jurisdiction over state criminal charges?
From a statutory standpoint, the answer is 28 U.S.C. 1442(a)(1), which permits a state criminal prosecution to be removed to federal court if involves a federal official who will assert federal defenses. Trump intends to argue that the conduct at issue arose out of his conduct as a federal official and that he has federal defenses to the alleged crime.
I don’t think this is a commonly used provision (how often are there state prosecutions against federal officials?). Although, I believe it’s why Lon Horiuchi faced his state criminal charges in federal court.
From an Article III matter, I think it’s clearly “arising under” jurisdiction. Generally speaking, federal defenses do not permit removal, but that’s a statutory matter. I don’t think it would be impermissible.
There is a bit of a mess related to the intersection of the state charges and some other law that as far as I know has not been formally identified. The NY state charge is a first degree offense only if you do the fraud in order to facilitate or conceal some other crime. They charged Trump with the first degree offense, but didn’t charge him with any other crimes. There is a lot of smoke around the other crimes being violations of election law (Trump’s lawyers come right out and say that’s what the prosecution’s case is), and that would make a lot of sense given what the public statements have been, although if that’s part of any filing by the state I haven’t seen it.
So they are going to try to make it into a morass to the extent that the other offense is under federal election law, or under state law regarding a federal election. They want to raise defenses about federal preemption (of state election law by federal election law) and about his actions being under the color of the presidency because he hired Cohen specifically to be his “I’m the president now” lawyer, which I would tend to doubt are good arguments, but part of Trump’s legal strategy has always been just to make everything a mess and hope for some relief somewhere. You can kind of squint at the whole big picture and see how it’s weird process that New York is charging a guy with 30-some violations of a law that requires him to have the intent to violate some other laws, while nobody is trying to charge him with those violations.
None of that information really makes it any clearer than what Falchion has already said, but I think it’s what is kind of orbiting around the case.