One of the first big battles in the new racketeering case against Donald Trump is likely imminent: Should the former president face a jury in state or federal court?
Although the charges were filed in state court in Fulton County, Ga., Trump is sure to attempt to “remove” the case to federal court, where he would potentially have a friendlier jury pool and the chance of drawing a judge whom he appointed to the bench.
To try to get the case into federal court, Trump is expected to argue that much of the conduct he’s been charged with was undertaken in his capacity as an officer of the federal government, because he was still president during the critical period when he and his allies attempted to subvert the 2020 election results. A federal law, known as a “removal statute,” generally allows any “officer of the United States” who is prosecuted or sued in state court to transfer the case to federal court if the case stems from the officer’s governmental duties.
Trump has already attempted to make this move in New York, where he’s facing state charges for falsifying business records to cover up an affair with a porn star. A federal judge there rejected the effort and directed the case back to state court, noting that the charges there didn’t really implicate Trump’s powers as president.
“There is an ‘outer perimeter’ to a President’s authority and responsibilities beyond which he engages in private conduct,” U.S. District Judge Alvin Hellerstein ruled, sending the case back to New York state court. Trump is appealing the ruling.
But Georgia could be different: Most of the charges Trump is facing — sweeping allegations of using his office to corrupt the 2020 election — involve his presidential authorities and his efforts to manipulate the federal processes he was charged with overseeing. That makes removal a more viable option in Georgia than New York.
For Trump, taking the case federal may have several benefits. For one thing, a trial in the U.S. District Court for the Northern District of Georgia would draw from a wider jury pool than the current case sitting in Fulton County, where Trump is deeply unpopular. In addition, Trump has appointed four of the 15 judges on the Northern District of Georgia District Court bench, giving him at least a fair chance of drawing one of his own picks. (In yet another one of his criminal cases — his federal prosecution in Florida for hoarding classified documents — Trump managed to draw one of his own judicial appointees, Judge Aileen Cannon.)
In New York, Trump argued that his alleged efforts to steer money to porn star Stormy Daniels stretched into the first year of his presidency, which meant he took actions within “the color of his office.”
“The charges involve alleged federal and state election law violations that have a federal preemption defense,” Trump’s attorney Susan Necheles argued.
Trump is sure to make a similar argument in Georgia when the time comes to file motions.
Though federal courts often take a permissive view of removal efforts, some legal analysts said Trump’s inevitable bid will face obstacles.
Anthony Michael Kreis, an assistant professor of law at Georgia State University, pointed to two charges tied to alleged conduct Sept. 17, 2021 — after Trump left office — as being particularly significant because they indicate that Fulton County District Attorney Fani Willis is seeking to prove Trump continued the conduct in his capacity as a private citizen. On that day, Trump is accused of urging Georgia’s secretary of state to “decertify” the election and announce Trump as the “true winner.”
“She’s trying to hedge off a removal motion,” Kreis said.
“She’s trying to say, ‘No, this was not about his office,’” he added. “If he can make a colorable claim that he was acting in part as president, there’s a really strong claim that he could say that this case belongs in federal court. They’re trying to say, ‘No, this was never about Donald Trump in his official capacity as president.’”
A panel of Brooking Institution attorneys, in an analysis last year, also disputed Trump’s right to get the case moved to federal court.
“[N]either the Constitution nor applicable federal statutes vest the president with any authority or responsibility to interfere with the administration of the Georgia election,” they wrote.
Trump’s effort to coerce Georgia Secretary of State Brad Raffensperger to “find” enough votes to flip the outcome, and his effort to assemble a false slate of presidential electors in Georgia, would fall outside even the loosest interpretation of his official duties, they argued.
The panel also contended that Willis could make an even more basic argument to try to keep her case local. Willis could argue that the federal “removal” statute doesn’t count the president as an “officer” capable of removing the case at all. Manhattan District Attorney Alvin Bragg made this argument in New York but Hellerstein rejected it.
Hellerstein noted that removal “aims to prevent individual states from using their laws to hinder the federal government from exercising its lawful authority.” Trump, as a former president, must be able to at least make that claim, he said.
“It would make little sense if this were not the rule, for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority,” he said.
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