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Former President Trump’s NY Cases Ought to be Removable to Federal Court

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I taught Federal Jurisdiction for at least fifteen years at Northwestern Law School, from 1990 to 2005, and I have written several law review articles on this subject. I have long admired the federal removal statutes, which allow allow federal officers and persons acting under a law of the United States to remove their cases from state to federal court. See generally In re Neagle, 135 U.S. 1 (1890). One such law was passed during Reconstruction, in 1875, in the wake of the Civil War, to prevent the eleven former Confederate states from harassing or oppressing federal officers or those with a duty to act under federal law.

State judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion. That bias is evident in both the New York State criminal and civil lawsuits brought against former President Donald Trump this year. Those cases were tried in the most liberal borough, of one of the most liberal cities, of one of the most liberal states in the nation.

Regional biases against former Presidents are sometimes quite pronounced. The NY civil and criminal cases brought against former President Donald Trump are evidence of this fact. This makes broader removal statutes necessary and proper so that talented people will not be dissuaded from running for the office of President of the United States.

The House of Representatives should pass a bill, which is now before the House rendering such cases removable to federal court. Former President Trump’s conviction in a Manhattan trial court is unconstitutional under the First Amendment, as I have previously explained on this blog. Trump’s conviction thus presents a major federal question, which ought to be decided before voters cast their ballots this November by the U.S. Supreme Court. The House of Representatives can expedite that process by passing the removal bill, which is now before the House.

Any final legislation passed should allow the removal of civil as well as of criminal cases. Former President Trump’s loss of a civil suit with damages assessed at around $450 million also presents major federal questions under the Due Process Clause of the Fourteenth Amendment, as well as presenting an Eighth Amendment excessive fines claim. Congress should pass a broad removal statute that covers at least state criminal and civil claims brought against former Presidents of the United States. This is necessary and proper so that talented people will not be dissuaded from running for President in the future.

In my opinion, such a statute should apply not only to former Presidents of the United States. It should also apply to former Vice Presidents and to all former officers of the United States. One can easily imagine former Vice Presidents or officers of the United States being harassed by elected state prosecutors and judges. Even former members of Congress should probably be allowed to remove civil and criminal cases from state to federal court.

The sad truth is that state prosecutorial and judicial officials are, overall, somewhat more partisan and more lacking in legal wisdom than are life tenured federal judges. This is due to the fact that state judges and district attorneys are elected at the state level. There are many superb state Supreme Court and inferior court judges and district attorneys. But, at a minimum former Presidents of the United States ought to be guaranteed that they will have access to the federal life tenured judiciary if they are sued or prosecuted. This is not only just. It is also necessary to ensure that talented people will not be dissuaded from running for or holding federal offices in the future.

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