Is the President Entitled to a Federal Forum?

Is the President of the United States — America’s highest federal office — entitled to a federal forum in a criminal case brought by a state? That is the constitutional conundrum that is percolating in President Trump’s appeal of his 34 hush money convictions in the case brought by Manhattan’s district attorney, Alvin Bragg. On Friday Judge Alvin Hellerstein ruled — for the third time — that the doors to the federal courthouse are barred to the 47th president.Mr. Trump’s effort to remove — that’s the technical term — his case to federal court is parallel to his primary appeal to reverse his convictions. That petition is wending its way through New York courts. It would have been better if Mr. Bragg’s case, which relied on legal jiu-jitsu to transform misdemeanors into felonies, had never been brought. Both the federales and Mr. Bragg’s predecessor as district attorney declined to charge Mr. Trump on the same facts.Judge Hellerstein, 92, had the chance to thrice rule on the federal dimension of Mr. Trump’s appeal after the Second United States Circuit in November ordered him to reconsider the question in light of the Supreme Court’s ruling in Trump v. United States. That said official presidential acts are presumptively immune. The panel — Judges Raymond Lohier, Susan Carney, and Myrna Pérez — reckoned Judge Hellerstein’s rulings had been cursory. The rudiments of federal removal date to the 1789 Judiciary Act, but took full form in the 1875 Jurisdiction and Removal Act. The ability to transpose a case involving federal officers to federal court from a state one was seen as a safeguard against local prejudice in the wake of the Civil War. The high court has held that removal is available for actions “relating to any act under color” of federal office where the defendant is likely to mount a federal defense.Judge Hellerstein insists that “hush money paid to an adult film star” — that would be Stormy Daniels — “is not related to a President’s official acts” and “does not reflect in any way the color of the President’s official duties.” Mr. Trump has maintained that the payments were entwined with his professional duties. Judge Hellerstein counters that “not everything a President does is in the context of the discharge of his federal duties.” The nonagenarian jurist also holds that removal is “not available” after a federal officer defendant like Mr. Trump “has been convicted, sentenced, judgment entered, and appeal noticed.” Judge Hellerstein could be right on the merits, though Mr. Trump could appeal his decision back up to the Second Circuit — and eventually, to the Supreme Court. The Roberts Court has been a zealous guardian of presidential prerogative.Mr. Bragg’s case against Mr. Trump — like the civil action launched by New York’s attorney general, Letitia James — was always political. Mr. Bragg and Ms. James, both elected Democrats, campaigned on promises to pursue Mr. Trump in court. The peril of a political prosecution of a federal officer holder is precisely the problem federal removal was designed to counteract. Mr. Trump, in our view, is right with respect to the letter and spirit of the law.

Is the President Entitled to a Federal Forum?

Is the President Entitled to a Federal Forum?

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