Thread by @McAdooGordon

DJT GA Case. Removal - more practical issues.

So this thread will look at (1) who can file the notice to remove, (2) do each/all the defendants need to file separately to get the removal, & (3) will the whole case be taken by the federal court or just the "federal" defendants.

I knew a bit about some of these issues when this started & some I had to figure out by researching a bit. As I've noted repeatedly, removal in criminal cases does not happen that often and I have never personally handled one.

As I explained in an earlier thread, there is a federal statute that governs removal. It's not just for federal officers & most of it is for civil rather than criminal cases. The sections Meadows' lawyers are using pertain to state court criminal cases against a federal officer.

That section, which is 28 USC 1442(a), says federal officers & "any person acting under that officer" can seek the removal of state charges that relate to acts for his/her office. So, it's obvious that Trump, Meadows, & Clark were federal officers here so they can seek removal.

What about the non-federal employee defendants? Whether they can also seek removal depends on what "acting under that officer" means. It does not mean lower ranked federal officers as the plain language might suggest.

The SCOTUS has interpreted that language several times, through several iterations of the statute, to include people who are not federal employees but who are "assisting" the federal officer in his acts. Even chauffeurs have been considered covered. See Soper, 270 US 9 (1926).

In another case, (Greenwood) the Court said that those also "authorized to act with or for" federal officers were covered by the statute. The main SCOTUS case for evaluating this issue is the 2007 decision in Watson v. Phillip Morris. It is linked here: supreme.justia.com/cases/federal/…

The basic point is that the federal govt only acts thru people, & those people can be both it's own officers & others assisting them & authorized to act with or for them in carrying out their duties. So each defendant in this case who could show that could seek removal.

Each defendant in the DJT case who actually filed a notice of removal in federal court would be required to establish that point, so a closely related issue then becomes: do they each individually have to qualify and/or file to get the removal? The answer is: "No."

Unlike civil cases, where every party who can seek removal must do so for it to be effective & stay in federal court, in criminal cases if any 1 defendant successfully removes the case to federal court, EVERY defendant gets removed, even the ones couldn't seek removal themselves.

Again, the theory is that the federal court is vindicating the rights of the US (thru its employees/agents) & protecting itself from inappropriate state action & so that's the overriding factor in every issue. The SCOTUS established this rule in TN v. Davis, 100 US 257 (1879).

Several of the federal Circuits have specifically said that that principle requires that the entire case be removed if one officer successfully removes (at least the 2nd Cir, 5th Cir, 9th Cir, & 10th Cir) & numerous district courts have also held this.

The current, modern 11th Circuit has not so held but the 5th Circuit's precedent, Fowler v. Southern Bell Tel. Tel. Co., 343 F.2d 150 (1965) is binding on it because the case was decided before the split that created the 11th Circuit. So this is the law that applies in this case.

I suspect Meadows' lawyers and DJT's lawyers and perhaps many of the others conferred on these points before the case was indicted and decided who would have the best case for making the removal argument and pulling all the defendants into federal court.

The SCOTUS has not explicitly ruled on this point that I can tell, & truthfully, the reasoning used by the leading opinions (2nd & 9th Circuits) falters a bit when you consider the issue of including defendants who aren't federal officers or acting under them. What about then?

Because the cases talk about vindicating the US' interests & not letting the state impinge on them, but how are those affected if the federal officers were removed to federal court but the non-feds stayed in state court? Making them all stay together isn't the only solution.

A rule that split off the feds & left the state employees/actors or purely private actors in state court would probably not interfere w/or harm the interests of the US at all. And the cases pretty much say they are making a policy choice, not a statutory language one under 1442.

Where the case law falters a bit, the statute doesn't because in another section, 1447, Congress says that after deciding to remove, the court has power to issue "orders and process to bring before it all proper parties . . ." which typically would include all those involved.

1447 also requires the judge to remand the case back to state court if "at any time before final judgment" the court finds it no longer has federal jurisdiction. That could be for example, if all those entitled to removal as federal officers & those under them were dismissed out.

Finally, 1447 says that a remand to state court is NOT reviewable on appeal, unless the removal was based on 1442, in which case it CAN be appealed. The whole thing seems to contemplate that all defendants are removed to federal court at least initially.

So, long story short, under prevailing law, only 1 defendant in the case needs to file a notice of removal & succeed on it & the entire case will move to federal court, although as we've seen that often means it only does so for purposes of a motion to dismiss based on immunity.

And, unless the case gets remanded part way through the case, even if some of the defendants could not have independently sought removal, that is not going to ever matter. It would only matter if some people are dismissed for immunity reasons & others are not & there is a remand.

Then they could try to fight that by establishing that they are also federal officers & the court should continue to exercise its federal jurisdiction, & if they lost that argument, they could appeal it to the 11th Circuit.

If you want to read the earlier thread about the other practical issues with a removal notice (it's longer than this one I will warn you), it is here: 👇

https://twitter.com/McAdooGordon/status/1692292399362359760?s=20