Trump “Removes” Manhattan Criminal Case to Federal Court, Potentially Halting Sentencing [Update]

Donald Trump Alvin Bragg

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:

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”:

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:

We will keep you posted.

Tags: Trump Manhattan Indictment

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