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Don’t Let Donald Trump Take His Case to Federal Court

Don’t Let Donald Trump Take His Case to Federal Court

Now that Fulton County, Georgia, District Attorney Fani Willis has indicted former President Donald Trump for his effort to overturn the 2020 presidential election, Trump’s first chessboard move is likely to be a motion to “remove” the case—that is, to transfer it from state court in Atlanta to federal court in the Northern District of Georgia. This maneuver shouldn’t work, as it didn’t work in July in New York, but once it happens, two things are sure: It will command our attention, and it will introduce a potential for delay—Trump’s favorite sort of ploys. Federal law provides that a prosecution begun in a state court may, within 30 days, be “removed” to federal court if it relates to “any act” by “any officer of the United States” taken “under color of such office.”

This requirement, under long-standing Supreme Court precedent, means that the conduct must have involved performance of the officer’s job, and the officer must raise a “colorable federal defense” to the criminal charge. In essence, these two factors will merge in Trump’s claim to have been acting on behalf of the United States in trying to change the outcome of Georgia’s election. He will contend that he was just doing his job as president by making sure Georgia was conducting its vote count according to the law.

The irony of Trump posing as the federal protector of the electoral process is rich indeed. So is the historical irony of Trump seeking refuge in federal court under the removal law.

Today’s removal statute traces back to the run-up to the Civil War. Congress enacted a predecessor statute to protect the operation of federal law from southern states seeking to undermine the Union by arresting and prosecuting those carrying out its functions. Yet now Trump would invoke the statute to protect himself from a state prosecution seeking to hold him accountable for the harm he brought upon the Constitution, intruding on the state’s right and obligation to choose its own presidential electors.

Never deterred by irony, Trump will probably take this path, however limited its prospects of success, because if the case is moved to federal court, it could slow things down, his litigation go-to. Every lost week brings us perilously closer to the next presidential election.

But were he to succeed, he will get a shot at a jury pool drawn from the entire Northern District of Georgia and not just from Fulton County, which is seated in purple-to-blue Atlanta. A jury pool that adds Fulton’s eight neighboring counties, including one of the reddest in the state, is likely Trump’s goal in his belief that the jury might well include Forever Trump believers inclined to acquit regardless of the evidence.

In addition, Trump might draw a friendly judge to preside over the trial—ideally, from Trump’s perspective, one of the four he appointed himself to the Northern District of Georgia bench. Also, his lawyers will surely see the possible tactical benefit of forcing the state prosecutors to proceed in an unfamiliar federal forum.

Willis would presumably oppose the move for all the reasons Trump would have for making it. The good news is that her anticipated motion to return the case to state court should ultimately prevail.

The Fulton County indictment charges Trump with criminally interfering in Georgia’s selection of its presidential electors in multiple ways. Primary among them was his infamous tape-recorded January 2, 2021, phone call to Georgia Secretary of State Brad Raffensperger. In that call, Trump pressured Raffensperger “to find 11,780 votes”—one more than needed to overturn President Joe Biden’s receipt of Georgia’s 16 electoral votes. Trump even falsely suggested that Raffensperger could face criminal charges if he didn’t “find” those votes.

Then there was the fake-elector scheme. Trump’s 2020 campaign ran it in Georgia—as well as in six other states—to create a phony dispute on January 6, 2021, that would cause the rejection or delay of Congress’s certification of Biden’s election.

These two forms of the interference demonstrate a major obstacle for a possible “removal” motion: Nothing about his call to Raffensperger nor about the plot to obstruct the congressional session by instigating a groundless contest over electoral slates was within the scope of his position as president. Trump, apparently aware of the need to show the opposite, has already planted the idea on social media that his presidential duty to “take Care that the Laws be faithfully executed” included ensuring safe, secure, and fair elections in all 50 states.

Even if we were to accept the idea that Trump is genuinely worried about the fairness of the results of the election in Georgia, here’s the problem with his claim: Any imaginable role for a president in ensuring that the rule of law is obeyed in the electoral context focuses on races down ballot—in Georgia, on November 3, 2020, that included the election of one U.S. senator, 14 U.S. representatives, and a cast of statewide officeholders. But the one election the Constitution and the laws that implement it deliberately give the American president absolutely no role in overseeing is his own by the Electoral College.

Indeed, our Constitution’s process for selecting presidents conspicuously excludes the incumbent president himself. The Electoral College system is one in which each state’s slate of presidential electors is officially certified in the state’s capitol and sent to Washington, where it is then opened by the vice president and counted in the presence of the House and Senate in a special January 6 Joint Session. Donald Trump’s promise to join his supporters at that session was newsworthy both because it threatened violence and because it flew in the face of the Constitution’s notable exclusion of the president from that congressional proceeding.

Yet in his call to Raffensperger and in related efforts, Trump did not even assert that he was trying to ensure the safety, security, or fairness of any of those down-ballot elections. His sole focus was on his own loss of the Electoral College vote held in Atlanta on December 14, 2020.

Certainly no concept of a president’s duties includes threatening a state election official in order to flip the count in the president’s favor in his own election or getting state officials to replace the actual electoral slate with a fake one. As a federal court in Washington, D.C., ruled in Thompson v. Trump, “No constitutional provision or federal statute … grants … the President … any power or duty with respect to the Certification of the Electoral College vote.”

Trump’s quest for removal also fails for a second, independent reason: He cannot offer a “colorable” federal-law defense to the charges against him. While a “colorable” defense is one that is merely plausible, as opposed to one that’s likely to succeed, the nature of Trump’s undisputed conduct makes any possible federal-law defense he might contemplate implausible in the extreme.

The primary defense that Trump is virtually certain to present is presidential immunity—the idea that he is entitled to absolute protection from legal consequences for actions taken while he was president. But as the Supreme Court held in 1982, the claim to such immunity even in civil suits for damages—leaving open whether there is any such immunity at all in a criminal case—extends no further than the “outer perimeter” of his duties of office and the performance of “particular functions of his office.” Policing the selection of a state’s presidential electors in his own effort to remain in office cannot plausibly be among them.

In addition to asserting immunity, Trump might argue that he was exercising his First Amendment rights in his call to Raffensperger and even in his role in the fake-elector scheme. Any such argument would be legal nonsense. It would amount to claiming that laws criminalizing conduct using words to solicit fraud or theft impermissibly abridge the freedom of speech. Settled law (and common sense) is to the contrary.

Three decades ago the Supreme Court laid out the requirements for a federal officer to remove a prosecution from state to federal court. In doing so, the Court relied on a “strong judicial policy” against imposing “extraordinary burdens on the States.” The Court there explicitly recognized that the removal of state cases to federal court carries just such burdens.

No case in recent memory exemplifies that concern more clearly than this one. The states carry the principal responsibility for the fair and honest selection of presidential electors, and their authority to hold accountable those who commit crimes to frustrate that outcome is a matter of the highest priority.

District Attorney Fani Willis’s determination to deliver on her responsibility to the rule of law exemplifies a civil servant doing her duty without fear or favor. What Trump did is unprecedented, and it thus calls for the vigorous response of a state prosecutor to enforce the law against a former president.

Trump’s bogus claims to have been doing his job in trying to overturn the election and otherwise being immune simply because he was president at the time should be roundly rejected, and his effort to remove the case to federal court denied. It is but the latest chapter in his unending assault on the rule of law by trying to keep it from applying to himself as it does to all of us.

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