Trump Seeks To Move New York’s Case Against Him to Federal Court — Setting Up a Potential Constitutional Clash

The motion by President Trump to move District Attorney Alvin Bragg’s criminal case against him to federal court presages a legal clash that could land before the Supreme Court. At the stratagem’s heart is an unprecedented question: Where should a former president be tried?The answer to that question, Mr. Trump’s lawyers — Todd Blanche, Susan Necheles, and Joseph Tacopina — argue, cannot be within the jurisdiction where Mr. Bragg is the chief law enforcement official.The filing in federal court argues for federal jurisdiction because the activities in question — the writing by Mr. Trump of checks to his former lawyer, Michael Cohen, in 2017 — transpired once he was commander in chief and because the alleged violations touch on federal campaign law, in addition to any related state charges. “This case is unprecedented in our nation’s history,” Mr. Trump’s lawyers argue. “Never before has a local elected prosecutor criminally prosecuted a defendant either for conduct that occurred entirely while the defendant was the sitting President of the United States or for conduct that related to federal campaign contribution laws.” The motion for removal to federal court aims to relocate Mr. Trump’s case to the Southern District of New York. It labels Mr. Bragg’s effort to elevate misdemeanors into felonies by tying them to federal campaign violations a “novel theory.” The document notes, “There has never been a prosecution under New York State law based on an alleged violation of election law pertaining to a federal election.”Federal law mandates that a criminal prosecution begun in state court of any “officer” of the United States where the charges relate to “any act under color of such office” must “be removed by them to the district court of the United States.” Mr. Trump’s team notes that some of the checks in question were signed in the Oval Office, fulfilling this requirement.Mr. Trump argues that the entire case is federal in hue, writing that his “decision to retain Michael Cohen to act as his personal lawyer arose out of his duties as President and therefore gives rise to a federal defense to the charges in this case.” They also cite the doctrine of preemption, meaning that the federal elements of the case should predominate over the state ones. Mr. Trump’s attorneys also proffer a more exotic argument for removal to federal court, averring that the state prosecution is “politically motivated” and was “brought because a local politician — here District Attorney Alvin Bragg — disfavored President’s Trump’s acts and policies as President of the United States.” In other words, it is a witch hunt. The upshot of that accusation is the conclusion that federal courts have “protective jurisdiction” over this case. This line of argument is untested, though, as the lawyers who offer it admit that the “Supreme Court has never definitively decided” whether federal courts can intervene “in cases of state hostility to the federal officer.”Mr. Trump, though, asks the jurists of the Southern District to look to Mesa v. California, a Supreme Court case from 1989. That case explored whether postal workers who accrued traffic violations while on duty were acting under “color of office,” and thus could be taken to federal court. It held they could not. In a concurrence, Justice William Brennan recalled, “The days of widespread resistance by state and local governmental authorities to Acts of Congress and to decisions of this Court in the areas of school desegregation and voting rights are not so distant that we should be oblivious to the possibility of harassment of federal agents by local law enforcement authorities.”“Such harassment,” Justice Brennan expounds, “could well take the form of unjustified prosecution.” The same removal statute invoked by Mr. Trump, the justice reasoned, “might well have been intended to apply in such unfortunate and exceptional circumstances.”________Correction: New York’s case against President Trump is the case that Mr. Trump is seeking to have moved to federal court. The case was mischaracterized in a headline in an earlier edition.

Trump Seeks To Move New York’s Case Against Him to Federal Court — Setting Up a Potential Constitutional Clash

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