Trump “Removes” Manhattan Criminal Case to Federal Court, Potentially Halting Sentencing [Update]
Trump asks federal court to take jurisdiction of his New York criminal case, halt his sentencing, and dismiss the case.
As we reported in early July, Donald Trump’s sentencing for his bogus New York criminal conviction is currently scheduled for September, 18, i.e. in three weeks: *UPDATE* Judge Merchan Moves Trump Sentencing to Sept. 18 ‘if Such is Still Necessary’
Yesterday, in a major move designed to halt that sentencing and get the entire case dismissed, lawyers for former President Trump filed a “Notice of Removal” in federal court asking the federal court in Manhattan to assume jurisdiction over the case. You can review the Notice of Removal here, and as embedded at the end of this post.
From Fox News: Trump asks federal court to take over Bragg case weeks before sentencing:
Lawyers representing former President Donald Trump are now asking a federal court to seize his New York criminal trial from the state, arguing he has become a victim of “Constitutional violations” in proceedings that conflicted with the Supreme Court’s recent ruling on presidential immunity.
The attorneys wrote in a filing Thursday that the “ongoing proceedings will continue to cause direct and irreparable harm to President Trump — the leading candidate in the 2024 Presidential election — and voters located far beyond Manhattan.”
“And an entirely unjust sentencing is currently scheduled to occur on September 18, 2024, which could result in President Trump’s immediate and unconstitutional incarceration and prevent him from continuing his groundbreaking campaign,” they warned.
“Post-trial removal is necessary under these circumstances to afford President Trump an unbiased forum, free from local hostilities, where he can seek redress for these Constitutional violations,” the lawyers added in their bid to overturn his conviction.
In May, Trump was found guilty on 34 counts of falsifying business records in the first degree, following a six-week trial stemming from Manhattan District Attorney Alvin Bragg’s investigation into alleged hush money payments ahead of the 2016 presidential election.
However, Trump’s attorneys wrote in their filing with U.S. District Court in Manhattan that Bragg’s office “violated the Presidential immunity doctrine in grand jury proceedings, and again at trial, by relying on evidence of President Trump’s official acts during his first term in Office.”
You may be wondering how can someone change the jurisdiction over their state criminal case to a federal court. Well, if it’s you, you probably can’t, but an actual (or maybe former) federal official facing prosecution might be able to.
Chapter 89 of Title 28 of the United States (i.e. federal) Code is entitled “DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS” (Note: “district court” is the federal term for a federal trial-level court), and it sets out the requirements and procedures for “removing” state cases, both civil and criminal, to federal court.
The second Section of Chapter 89, 28 U.S.C. § 1442, entitled “Federal officers or agencies sued or prosecuted,” says that:
A…criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1) (emphasis added)
The key part of Trump’s “Notice of Removal” argues that Alvin Bragg’s prosecution improperly relies on evidence derived from Trump’s official acts while President, which fits into the Removal statute quoted above. From Fox News, reporting on the Notice of Removal:
“In an opinion that became final less than 30 days ago, the Supreme Court held that President Trump is entitled to immunity from criminal prosecution for his official acts, and — as particularly relevant here — that prosecutors may not use official-acts evidence in connection with a prosecution that they claim arises out of unofficial conduct,” they continued. [emphasis added]
Trump campaign spokesman Steven Cheung told Fox News Digital on Thursday that “The Manhattan DA’s Witch Hunt, which violates many provisions of the United States Constitution and is crushed by the Supreme Court’s historic decision on Presidential immunity, has to be removed to federal court and summarily dismissed.”
Importantly, Chapter 89 of the U.S. Code also sets out the procedure the federal court has to use to determine of the “Removal” is proper:
28 U.S.C. 1455: Procedure for removal of criminal prosecutions:
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 [i.e. in this case Manhattan] 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,
(1) A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.(3) The filing of a notice of removal of a criminal prosecution 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 [back to state court].(4) The United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. 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.[emphasis added]
So, if the federal court, in this case Manhattan federal Judge Alvin Hellerstein, determines that the “Removal” is proper, Trump’s federal court conviction is dead in the water and he won’t be sentenced, at least in New York state court, in that case.
More importantly, Trump’s lawyers argue that even if it takes a while for Judge Hellerstein to rule on Trump’s Notice of Removal, the state case should halt and Trump’s state criminal sentencing should be delayed based on 28 U.S.C. 1455 subparagraph (c) quoted above. From the Notice:
President Trump respectfully requests that the Court (i) promptly order People v. Trump removed to the Southern District of New York, pursuant to 28 U.S.C. §§ 1442(a)(1), 1455, and 1653; [and] (ii) confirm that Justice Merchan may not sentence President Trump during litigation over this removal because sentencing would result in a prohibited “judgment of conviction” under 28 U.S.C. § 1455(b)(3); CPL § 1.20(15) (defining “judgment” to include “a conviction and the sentence”).
Despite having been a federal court law clerk working directly for a federal judge for several years, I am not sure of the validity of this last argument, but I can tell you that the lawyer that filed Trump’s “Notice of Removal,” Attorney Emil Bove, is one of the smartest lawyers I ever worked with. When I interned for Judge Richard C. Wesley of the federal Second Circuit Court of Appeals, Emil was one of Judge Wesley’s law clerks, and damn was he smart. He also clerked for Judge Richard Sullivan, who was a Manhattan federal court judge and is now a sitting judge of the Second Circuit. You can read Emil Bove’s bio here, which includes having spent over nine years as an Assistant U.S. Attorney in the Manhattan U.S. Attorney’s office.
Some Twitter commentary:
🚨
After the Supreme Court’s monumental presidential immunity ruling, Trump removes New York criminal case to federal court.
The federal judiciary, not a kangaroo local court ran by a corrupt partisan judge, must decide these weighty matters that implicate the entire country. pic.twitter.com/EKra95SOsk
— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) August 30, 2024
🚨 Donald Trump has filed a motion to remove his New York criminal case to federal court, where he will likely ask to overturn the jury's verdict and where appeals can be more directly taken to SCOTUS. pic.twitter.com/FGlW5Ym1bI
— DW Fan (@daily_wire_fan) August 30, 2024
The following commenter calls the “Notice of Removal” a “long shot” but thinks that even if Judge Hellerstein denies the “Removal,” it might still delay Trump’s sentencing until after the election:
“If the removal ruling of the federal court is appealable (I’m not sure that it is), this may provide a federal avenue for appeal prior to sentencing. In that case, it might push sentencing back past the election”:
Trump tried to remove this criminal case earlier, but the federal court remanded back to the state court.
This is a second attempt at removal.
Considering the status of the case (post verdict, pre sentencing) it is unlikely that the federal court will grant this petition.
If…
— Len Davis (@lendavis3) August 30, 2024
UPDATE: Judge Hellerstein Denies Trump’s Removal Efforts, Sending the Case Back to State Court for Sentencing on September 18:
A federal judge has halted Donald Trump’s efforts to have his New York state criminal case “removed” to federal court in an effort to halt or delay his pending September 18 sentencing.
From The Hill: Judge denies Trump bid to move hush money case to federal court:
A federal judge ruled Tuesday that former President Trump may not request to move his hush money criminal case to federal court after failing to show “good cause,” meaning the case will remain in New York state court.
U.S. District Judge Alvin Hellerstein said in a four-page order that the two reasons Trump offered as to why his case should be removed — that New York courts were biased against him and that his trial judge did not adequately review the issue of presidential immunity — fall short.
Hellerstein said that district courts do not have jurisdiction to consider alleged bias against Trump in New York state courts, contending that’s an issue for state appellate courts to consider. That means Trump’s second argument, on presidential immunity, is the only one that “deserves attention,” he said.
On that matter, Hellerstein previously ruled that “hush money paid to an adult film star is not related to a President’s official acts.”
“Nothing in the Supreme Court’s opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority,” the judge said Tuesday.
Trump’s request to move his New York state criminal case to federal court last week suggested that pushing ahead with the “purely political” state prosecution would cause him “direct and irreparable harm” in the 2024 presidential election.
He asked Judge Juan Merchan, the trial judge, in a letter Thursday to refrain from ruling on outstanding motions, which include his presidential immunity motion and a motion to push back his Sept. 18 sentencing, until after the removal proceeding concluded.
The Manhattan district attorney’s office urged Merchan not to wait on the district court’s ruling on removal to make his own on the other matters, suggesting that Trump’s concerns over timing as November nears are a result of his “own strategic and dilatory litigation tactics.” However, the state prosecutors said they would defer to the judge on whether to delay Trump’s sentencing.
Trump was convicted in May on 34 counts of falsifying business records in connection with a hush money payment his ex-fixer made to an adult film actress to keep her story of an alleged affair with Trump, which he denies, a secret ahead of the 2016 presidential election.
You can review Judge Hellerstein four-page Order denying Trump’s “removal” efforts here.
The only comment I would make is that Judge Hellerstein appears not to have addressed Trump’s argument that the recent SCOTUS Presidential Immunity case held that prosecutors may not use official-acts evidence in connection with a prosecution that they claim arises out of unofficial conduct. Not sure that will make any difference going forward, or whether a court of appeals will even review Judge Hellerstein’s Order.
Looks like Twitter/X has similar thoughts:
Watching federal judges completely ignore Supreme Court is just stunning.
90-year-old Clinton appointee quickly denies Trump’s post-immunity request to move Bragg case from state to federal court where it belongs. This is the 2nd time Judge Hellerstein has denied removal motion pic.twitter.com/1Xf0wHx83c
— Julie Kelly 🇺🇸 (@julie_kelly2) September 3, 2024
Judge Hellerstein’s decision remanding Trump’s case back to Justice Merchan is a disgraceful example of a federal judge not doing his job. He completely ignores Trump’s central arguments on SCOTUS’s ruling on Official Acts EVIDENCE and preemption in view of the SCOTUS overturning…
— FoiaFan🇮🇱 (@15poundstogo) September 4, 2024
The whole point of removal is to have federal defenses decided in an Article III court free of local prejudice. Hellerstein refutes the premise b/c he’s as biased as Merchan. Ridiculous abdication of his duty.
— Harry MacDougald (@HarryMacD) September 4, 2024
We will keep you posted.
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Comments
the lefty has kidnapped trump
its that simple
he is bound and gagged by their continuous attempts to smash him in their
kangaroo courts
we all know it
The Supreme Court case re immunity should supply new facts for the District Court and justify a reexamination of the motion to remove.
This gets into a really technical area of law that I’m not remotely capable of properly explaining. But, while Len Davis (cited above) is correct that Trump attempted to have this case removed earlier (before the trial began) and was denied, there must be a closer examination of that denial to really understand what happened and how it might be relevant now. The federal District Judge who heard that first petition essentially gave Bragg a roadmap of how to avoid any federal preemption problems when making his case-in-chief. What did Bragg then do? He completely ignored everything that federal District Judge told him to do creating a mountain of preemption problems for this case.
That was also before the immunity ruling, IIRC, and all of it’s evidentiary prohibitions.
Did Trump’s first attempt to remove the case to Federal Court occur before or after the Supreme Court ruling?
Long before.
If nothing else, this should result in a higher court’s opinion of the case. Of course it’s all ridiculously liberal New York. Is there any way we can force New York and DC to secede??? Can we throw them out of the Union???
Not sure what the correct legal answer is as to the potential for success or whether this stays sentencing pending acceptance or denial by the federal district court. I am fairly convinced that this doesn’t matter since Merchan and Bragg have demonstrated that they don’t give a rat’s a$$ about the law or President Trump’s rights. So in a nutshell, Merchan will do on Sept. 18 what the democratic party wants him to do, as always.
Given that these state courts are Intermingly State and Federal statutes, moving this load of crap out of their jurisdiction seems like a no brainer.
The purpose of removal is to apply a check on the states to prevent such things as arresting the IRS agent for trespassing, charging him for one crime for each step taken and then railroading him in a local kangaroo court on all counts as a warning to other federal agents.
Sound familiar?
Not going to happen.
Yep. Not sure this is even newsworthy except that it could produce delays.
Keep in mind that the first request for “removal” to federal court occurred before SCOTUS ruled on presidential immunity. That ruling might be enough to get this second request a more serious consideration.
That was my question. When did the first request happen.
It was filed after the indictment, and rejected in July 2023.
This is a strategically timed move. The Democrats want an ‘October Surprise’ sentencing of Trump for the press/propaganda value. The Republicans want to delay any ruling until after the election.
This move whether ultimately successful or not should accomplish the Republican goal.
If Trump wins, the whole thing becomes moot for at least the next four years, and if he loses, well….
A question of legal grammar:
Did Trump “remove to a federal court”?
Or did he “attempt to remove to a federal court”?
The one seems like correct English, but it’s law so it might not be that way.
Trump’s defense team has apparently only filed the legal papers in an attempt to have the case removed to federal court. And until a federal judge rules upon that request it still remains with the NY state court. So the title of this post is just clickbait nonsense as the case hasn’t been removed to federal court. Not yet at least.
Sounded odd to me too. The headline leads one to believe it was a done deal and Bragg was left crying on the way to Dunkin Donuts.
It’s called a “Notice of Removal” not a ‘Motion to Remove.’ The Federal court still has to say yes or no to jurisdiction.
When Trump wriggles free from all of these unconstitutional attempts at election interference, the left will absolutely never be able to get the taste of his nuts out of their mouth. He won’t be ‘living rent free’ in their heads, he will be skullfucking them rent free for the rest of their lives. It will be hilarious.
Aw, sucks to be you, Alvin.
Hey, Disney’s currently casting for an all-black cast for a live Shrek sequel (“The Og'”). If I were you, I wouldn’t delay!
(And due to the personal chemistry between you, Merchan has an outside chance for the part of Donkey!)
With the caveat that I am not an attorney, nor do I have any expertise, insight into criminal law- I will make the following observations
A) The filing to move to federal court will likely fail (unfortunately I cant provide a sound legal reasoning to get it moved to federal court)
B) The SC immunity holding will have zero impact, since most of the alleged conduct occurred prior to becoming president
Comments Regarding the prosecution and the 34 counts
A) The # of counts is grossly overstated – 1) approxi 12-15 of the counts were invoices created by Cohen, Those can not be attributed to Trump 2) approx 10-12 of the counts are duplications in that the accounting software creates the check, it posts a duplicate entry in the ledger. ie, same as printing two copies of the invoice is not 2 events, or printing check and check stub is not two events
B) vastly more important error – The state has to prove all elements of a crime, In this case, falsifying business records was a felony. To be a felony, the falsification had to be in furtherance of another crime. The state was able to prove falsification of the business records, but they did not prove the second element which was the other crime. The jury was told to assume another crime was committed. Failure to prove the second element should be the primary reason for reversal.
I think B) is the sticking point. The argument Trump’s lawyers are making is that Bragg introduced evidence of his actions during his Presidency, for some reason, in getting him convicted which is a big no no.
Ah, but the president is not an “officer of the united states”. So at least the plain text of the statute doesn’t provide for him to remove a case.
I wonder whether Bragg will make that argument.
The grounds for removal on a post-trial substantial change in substantive law implicating the additional facts of official presidential duties, which the SCOTUS brought about with its recent presidential immunity decision, could be undermined by the fact that the record keeping at issue involved actions during the initial campaign and not the presidency. Just making an arguable point.