Hello Friends. As a brief follow-up to the series on federal officer removal, the State of New York has filed it’s motion for remand. As set forth in the subtitle, the motion is adequate, but not spectacular. The motion argues (1) Trump has not established that he was acting under color of office; (2) that Trump has not articulated a plausible federal immunity or preemption defense; (3) that the court should not exercise protective jurisdiction; and (4) that the President is not an officer under the United States.
In the color of office section, New York argues that the payments made to Michael Cohen were personal in nature and thus not undertaken under color of office. Our friend Application of Donovan does show up in the brief (Yay), but the brief explanation of the case doesn’t really do the similarities justice (Boo).
The problem is that the motion doesn’t really grapple with Trump’s reasoning for why the action was taken under color of law - that placing his business assets in Trust was necessary in order to avoid conflicts of interest under the Foreign Emoluments Clause and to comply with the Take Care duties of the President under Article II. The words “emolument” and “conflict” do not appear anywhere in New York’s brief. This is not ideal because the Court is required to accept the removing officer’s theory of the case in evaluating whether there is federal officer removal jurisdiction. Texas v. Kleinert, 855 F.3d 305, 312 (5th Cir. 2017). Had New York done this in its motion, I think highlighting the similarities becomes more important. Donovan argued that his actions were under color of office because he had to comply with the Ethics in Government Act rules on conflicts of interest. Trump is arguing that his actions were taken under color of office to avoid conflicts of interest under the Foreign Emoluments Clause. By ignoring Trump’s theory of the case, New York didn’t do as good of a job as it could have demonstrating the lack of federal officer removal jurisdiction even under Trump’s own theory.
Next, New York argues that Trump does not have federal officer immunity as a colorable federal defense. I’m not sure that Trump’s Notice of Removal even makes this argument. New York appears to agree that it’s unclear whether this argument is being made, but addresses it anyway:
The fun part of this section is that it doesn’t make most of my first two posts in the series irrelevant. We even see our friend Idaho v. Horiuchi get a mention and explanatory parenthetical. Mesa v. California also receives several mentions.
In the section on preemption, New York argues that Trump misunderstands the indictment’s theory regarding which laws Trump was attempting to violate as part of the falsification of business records scheme. The motion alleges the underlying crimes would be violation of New York Election Law § 17-152 and the Federal Election Campaign Act. New York argues that under New York law, the State does not have to prove a particular crime was intended, only that the defendant had a general intent to crime. I don’t love this argument because the court needs to accept Trump’s theory of the case. It also doesn’t help that the indictment and statement of facts filed by New York does not articulate the crime in which the business records were falsified in furtherance of. Under Penal Law § 175.10, the falsification of business records is only a felony if done “with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof.” Part of the milquetoast response to the indictment was that it did not identify the supporting crime. As Alvin Bragg said at his press conference, he was not required to specify the crime in the indictment.
That said, I don’t have a ton of heartburn over this section because I’m not sure there was anything better to argue (unlike the color of office section which I think could have been argued better).
The next section argues that the court does not have protective jurisdiction. The argument boils down to the fact that the Supreme Court has not held that protective jurisdiction exists and blah blah blah federalism. There is nothing wrong with this section, it’s just a boring issue.
Finally, the motion argues that the federal officer removal statute doesn't apply to Trump because the office of President is not an office under the United States. This is a fun argument that has arisen under Carroll v. Trump, where the trial court concluded that the office of the President was not an officer of any federal agency for the purposes of the Westfall Act. Carroll v. Trump, 498 F.Supp.3d 422 (2020). The Second Circuit didn’t like that argument and said the President qualified as an employee of the government for the purposes of the Westfall Act.. 49 F.4th 759, 767 (2d Cir. 2022). This argument is also a hobbyhorse of Professor Josh Blackman, who made the same argument that Trump was not an officer under the United States for the purpose of the emoluments clause.1 I strongly, strongly doubt that the court gets all the way to concluding that these actions arose under color of office, that there is a plausible federal defense, but the court is going to kick it anyway on the idea that President isn’t a federal officer within the meaning of the statute.
So, long story short, I think this could have been argued better, but it will do. It’s likely that this thing is headed back to state court.