Hello Friends, we left off last time going through the history of federal removal to get to modern times. We are now ready to tackle Donald Trump’s motion for removal of his New York State prosecution to federal court. In order to remove his case to federal court, Donald Trump needs to demonstrate two things:
That he was acting under color of office; and
That he has a plausible federal defense.
Before we dive into the law, a little background is in order. Many people are wondering how Donald Trump can raise this argument when his agreement with Stormy Daniels predated his taking of office. However, the prosecution in this case is not directly about the hush money agreement. It is about the falsification of business records. According to the indictment, the false business records were generated from February 14, 2017 to December 5, 2017. These were indeed dates that Donald Trump was the President. The date of the conduct alleged to be criminal is not one of the hurdles that Donald Trump has here.
The Color of Office
In addressing the color of office, let’s look at Donald Trump’s removal notice and how it frames the issue:
Unsurprisingly, the Foreign Emoluments Clause is not a situation that has ever been addressed in a previous court decision regarding removal under 1442(a). We also have the Morgan Lewis White Paper that is referenced in the notice of removal. The document is six pages long, but the gist of it is that there isn’t a lot of case law about “emoluments,” that fair-market transactions aren’t considered emoluments, but that Donald Trump’s business ventures will donate all profits from all foreign government officials to his businesses out of an abundance of caution.
To establish that the prosecution is “for” an act under color of office,” the federal officer “must show a nexus, a ‘causal connection’ between the charged conduct and asserted official authority.” Jefferson Cnty. v. Acker, 527 U.S. 423, 424 (1999). Whether the officer was acting under color of law is to be construed broadly, or at least not in a “narrow” or “limited” way. Willingham v. Morgan, 395 U.S. 402, 406 (1969). The court must accept the removing officer’s theory of the case in evaluating whether the actions were taken under color of office. Texas v. Kleinert, 855 F.3d 305, 312 (5th Cir. 2017). “[C]ourts must ‘credit the officer's theory of the case’ to determine whether the officer ‘has made an adequate threshold showing that the suit is for an act under color of office.’” Id. (quoting Acker, 527 U.S. at 432).
So what we have here is a test that is generally favorable to the person arguing that they are acting under color of law and a fact pattern that doesn’t have a lot of analogues. A court could go either direction depending on whether the court was disposed to like Trump or dislike Trump. With that said, I have found a surprisingly on-point case.
Meet Raymond Donovan.
Donovan was the Secretary of Labor for Ronald Reagan. From 1959 to 1981, Donovan was the executive vice president of Schiavone Construction Company. Application of Donovan, 601 F. Supp. 574, 576 (S.D.N.Y. 1985). In 1978, Schiavone as part of a joint venture received a contract for part of the New York subway line. Id. In 1981, Donovan was appointed as the Secretary of Labor and resigned from Schiavone. Id. Donovan “however, has retained his stock interest in SCC and its affiliated companies but has placed it in trust. He served as Secretary of Labor from February 4, 1981 until October 1, 1984.” Id. at 577.
On September 24, 1984, the Bronx County grand jury, on the basis of evidence similar to that considered by [a federal special prosecutor who declined to indict], returned the subject indictment against petitioner and his codefendants. The indictment, on its face, charges petitioner and his codefendants with grand larceny (N.Y. Penal Law § 155.35 (one count)), falsifying business records (N.Y.Penal Law § 175.10 (125 counts)), and offering a false instrument for filing (N.Y.Penal Law § 175.35 (11 counts)), all during the period October 1, 1979 through September 24, 1984.
Id.
The allegation was that the contract required 10% of the bid price to go to subcontractors who are minority owned businesses and the Schiavone set up a sham minority owned business that was actually operated Schiavone. Id. Note that this time period covers time both before Donovan was Secretary of Labor and after he was Secretary of Labor.
Donovan sought to remove the case to federal court under 1442(a). Donovan argued that any actions he took after 1981 were done to comply with conflict-of-interest laws and thus were done under color of office. Id. at 579. The court rejected this argument:
Petitioner next contends that he could raise a colorable defense arising out of his duties under federal conflict of interest laws. Willingham established that the “color of office” test of § 1442(a)(1) covers “all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.” Id. at 406–07, 89 S.Ct. at 1815–16. Petitioner asserts that upon a trial, if the case survived a motion to dismiss at the close of the prosecution's evidence, he would prove that he complied with federal conflict of interest laws and thus necessarily withdrew from the alleged conspiracy. Although evidence of such compliance may well be relevant to a defense of renunciation under N.Y.Penal Law § 40.10, the significance of such evidence would depend upon petitioner's actions, not whether those actions were motivated by a duty to comply with federal laws. It is the fact of withdrawal, not the duty which prompted it, that may constitute a defense to conspiracy. United States v. Steele, 685 F.2d 793 (3d Cir.1982); United States v. Goldberg, 401 F.2d 644 (2d Cir.1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed.2d 790 (1969). Thus, petitioner's duties to comply with conflict of interest laws do not provide him with a colorable defense arising out of his duty to enforce federal law.
Id. Donovan also sought removal on the basis for protective jurisdiction (this was before Mesa and Justice Brennan’s concurrence regarding protective jurisdiction). Id. The court also rejected this argument:
Unquestionably, the indictment of a cabinet officer interferes with the administration and operation of the executive branch of the federal government. It strikes such a crippling blow to the officer's effectiveness that it compels his temporary, if not his permanent, removal from office. The longer the indictment remains unresolved, the greater the disruption of the Department of Labor. This creates a strong federal interest in the prompt disposition of the case which would be ensured by removal and a prompt trial mandated by the Speedy Trial Act. That interest, however, is neither a ground for removal under § 1442(a)(1) nor one which overrides the interest of the state in enforcing its criminal laws.
Petitioner claims that hostility on the part of the Bronx District Attorney is evidenced by the circumstances surrounding the indictment. He points to the prior federal investigation, based on substantially the same evidence and involving related issues, which concluded that there was insufficient credible evidence to take action against petitioner. Petitioner also claims that the indictment was timed by the Bronx District Attorney to influence a presidential election. He complains also of cursory and unfair treatment when he appeared before the Bronx grand jury and of prejudicial publicity and false characterization of the charges against him by the Bronx District Attorney. These contentions, if established, may have some relevance to other issues in this case, but they are immaterial to the issue of removal.
We recognize that the policy of providing federal officers with the protection of a federal forum “should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).” Willingham, 395 U.S. at 407, 89 S.Ct. at 1816. It is not our province, however, to expand upon the present statute, and we find that even the most liberal interpretation does not warrant removal here. The doctrines of federalism and comity mandate that federal courts act with restraint with respect to ongoing state criminal prosecutions and interfere with such prosecutions only when necessary to protect overriding federal interests. Younger v. Harris, 401 U.S. 37, 44–45, 91 S.Ct. 746, 750–51, 27 L.Ed.2d 669 (1971).
Id. at 579-80. As a result, Donovan’s case was remanded back to state court, where he was acquitted.
This is shockingly on-point to the arguments made by Donald Trump. According to the Notice of Removal, Donald Trump is arguing that his business assets were placed into a trust to avoid conflicts of interest under the Constitution. Donovan argued that he put his Schiavone assets into a trust to avoid conflicts of interest under federal law, and thus any actions he took after being appointed as the Secretary of Labor were under color of law. Here, Trump seems to be arguing that none of these false business records were done by him because his interest in the company was placed into trust and thus he wasn’t the person creating or certifying the business records (in addition to arguing that the business records weren’t false. The court in Donovan says this might be a defense, but it is not a defense arising under color of law.
Plausible Federal Defense
This section will be shorter than the last because most courts have agreed that preemption is a colorable federal defense for the purposes of 1442(a), including the Southern District of New York. In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 364 F. Supp. 2d 329, 336 (S.D.N.Y. 2004); Tennessee ex rel. Cookeville v. Upper Cumberland Elec. Membership Corp., 256 F.Supp.2d 754, 758 (M.D.Tenn.2003); Arnold v. Blue Cross & Blue Shield of Tex., 973 F.Supp. 726, 739 (S.D.Tex.1997).
The Second Circuit reversed MTBE on appeal, but did so on the basis that the defendants did not establish that they were acting under color of law, and thus did not reach the issue of whether preemption was a valid colorable defense for the purposes of 1442(a). In re Methyl Tertiary Butyl Ether (''MTBE'') Prod. Liab. Litig., 488 F.3d 112, 132 (2d Cir. 2007) (“As we have found that removal was inappropriate under the federal officer removal statute because the defendants did not act under an officer of the United States, we need not address the last requirement for removal under the federal officer removal statute, i.e., whether defendants have offered a “colorable” federal defense.). The Second Circuit has recognized the Supremacy Clause does provide a colorable federal defense. Whitehead v. Senkowski, 943 F.2d 230, 236 (2d Cir. 1991)
Perhaps the court would make some distinction between a preemption defense and the invocation of the Supremacy Clause, but I kind of doubt it. I think the real fireworks will be on the first prong.
I think this is the end of the series on 1442 until we get some briefing or a ruling. New York’s motion for remand is due on May 30th, with Donald Trump’s memorandum in opposition due on June 15th. Subscribe if you would like.