Removal of Criminal Cases to Federal Court: 25 FAQ’s

by Andrew Warren, Siven Watt and Norman L. Eisen

August 28, 2023

published on August 27, 2023; updated August 28, 2023

On August 14, 2023, a Fulton County, Georgia grand jury returned a 41-count indictment against former President Donald Trump and eighteen other individuals for a conspiracy to overturn the legitimate 2020 presidential election results in that state. Five of the defendants have filed notices of removal to have the case transferred from Georgia state court to federal court.[1] Defendants bear the burden to show they are federal officers (three of the five do not appear to have been), that the conduct was plausibly official and that they have a plausible defense based in federal law. The bar is a low one and the background law is favorable to true federal officers but removal is by no means automatic and is often denied. Among the results of a successful removal to federal court is a different jury pool, a different judge, and different procedural rules such as the absence of video cameras in federal trials.

This article provides detailed information about all that and other general and specific questions involving removal.

We welcome readers’ feedback and additional information (email address).

28 USC 1442(a)(1) permits removal to federal court of a criminal prosecution (or civil action) against defendants “for or relating to any act under color of such office.”

Removal is intended to protect the exercise of legitimate federal authority by government agents from interference by individual states. But courts have also identified a need to protect states’ authority and interests by limiting removal to situations in which a federal defense is applicable, hence, an additional requirement for removal.

The Supreme Court has articulated the following principles that serve as a framework:

To remove a case on a “color of office” argument, the removing party bears the burden of establishing what’s called the three-part “Mesa test,” from the Supreme Court case by that name,[5] The three-part test requires the defendant to show they:

Although the test’s threshold is viewed as relatively low, not all cases justify removal, and where the state opposes removal and offers persuasive reasons for why Mesa is not satisfied, the burden is very much on the removing party to provide specific reasons as to why the test is met.[6]

The Mesa test remains good law and applies to all removals under section 1442.[7] “Although the statute is ‘liberally construed’… the Supreme Court has cautioned that its ‘broad language is not limitless.’”[8]

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ANALYZING THE LEGAL STANDARD

The statute covers a very wide variety of federal officers and people acting under the direction of federal officers–including elected officials, federal civil employees, federal law enforcement officers, judges, postal workers, military officers, and more.

The threshold for the second prong in Mesa—often referred to as the causal nexus test—is generally often viewed as “quite low,” requiring only a causal “connection” or “association” between the act in question and the federal office.[9] But tied into this supposed low threshold, at least in the criminal context, is an expectation that the defendant “by direct averment exclude the possibility that…[the prosecution] was based on acts or conduct of his, not justified by his federal office.”[10] The precise threshold for “excluding the possibility” is unclear, but some courts have said it does not require “definitive” exclusion, and that the defendant’s theory of the case should be credited,[11] though not accepted as truth when factual discrepancies are clear. A judge should probe such facts before making a decision on removal.[12]

Importantly, the Supreme Court has explained that the evidentiary standard for the defendant may be higher in criminal cases of removal “because of the more compelling state interest in conducting criminal trials in the state court.”[13]

There are many possible defenses that a defendant could raise. For the Georgia case’s purposes, the most relevant is Supremacy Clause immunity. At the stage of removal, as noted below, the district court is not considering whether the test under the Supremacy Clause has been satisfied. It need only be a colorable claim. More on that in a moment.

The two standards involve overlapping factors, but in short raising a colorable claim of immunity (one of the requirements for removal) is a lower threshold than establishing actual immunity, i.e. to have the case dismissed (as discussed further below).

To establish Supremacy Clause immunity, the defendant must satisfy two conditions:

Supremacy Clause immunity is not absolute or enjoyed “simply because of his office and his purpose.”[16] A federal officer must actually act pursuant to federal authority, and their conduct must bear an objectively reasonable relationship to achieving a federal goal.

Importantly, a federal officer acting out of “any personal interest, malice, actual criminal intent, or for any other reason than to do his duty” would fail to establish immunity under the Supremacy Clause.[17]

Yes. Political activity is not an official duty required of a federal government employee. Accordingly, a defendant who is being prosecuted for conduct that arose out of political activity–especially campaign activity being paid for by campaign funds–would have a difficult, if not impossible, time establishing that they were acting within the color of their office. In fact, such conduct is strictly forbidden for federal officials under the Hatch Act and as a matter of Justice Department policy.

Probably not. But they probably only need to raise a single colorable defense for removal.

The Supreme Court has explained that a State’s right to investigate suspected crimes justifies its questioning of suspects under oath and other aspects of an investigation, and a federal officer’s response to that investigation is not an act under their federal authority.[18]

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A defendant must file a notice of removal for a criminal prosecution no later than 30 days after arraignment (or any time before trial, if trial is within 30 days from arraignment).[19]

The notice is filed in the federal district court, and must contain a “short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders.”[20]

The defendant’s filing of a notice of removal does not prevent a state court proceeding further with one exception, namely, that a judgment of conviction may not be entered unless the prosecution is first remanded.[21]

The district court must review the notice promptly, and must reject the removal petition on the papers (without a hearing) and remand to state court if it “clearly appears on the face of the notice” that removal is not warranted.[22]

If the court declines this type of “summary remand,” it is required to hold an evidentiary hearing.[23]

At the hearing(s), the defendant(s) and State will argue their position for why the case should be removed or remanded, respectively. As in the Meadows removal hearing on Aug. 28, 2023, the State can subpoena witnesses for the hearing, and the defendant has the right to present their witnesses. (DA Willis subpoenaed Brad Raffensperger, Frances Watson as well as Kurt Hilbert and Alex Kaufman (two Trump Campaign attorneys on the Jan. 2 call with Trump, Meadows, Raffensperger and others).

The federal court hears the removal case, sitting in its civil capacity.[24] A removal notice is filed at the federal district court of the United States for the district and division within which the prosecution is pending.[25]

In the present case, the United States District Court for the Northern District of Georgia is presiding over removal. That court will consider the notice and order any evidentiary hearing.

The defendant bears the burden of proof by a preponderance of the evidence (more likely than not, i.e., greater than 50%).[26]

The Federal Rules of Evidence apply, which is the case in nearly all federal proceedings except for specific miscellaneous proceedings (Fed. R. Ev. 1101). In a removal hearing, which is a civil action before the federal district court, and as with any non-trial proceedings, courts have more flexibility over how strictly they apply the rules of evidence.

During removal proceedings, the defendant’s pleaded facts are viewed in their most favorable light, and the defendant need only raise a “plausible” claim to Supremacy Clause immunity. Exhibits and witnesses can be called at any evidentiary hearing on the matter.[27] Conversely, once removed, the defendant must succeed in asserting their immunity, not just have a plausible claim to it.

When a defendant asserts immunity at the later stage, three steps are usually involved in Supremacy Clause proceedings: “[f]irst, the court examines the evidence ‘in the light most favorable to the state and the court assumes the truth of the allegations in the indictment.’ Second, the federal officer makes a ‘threshold showing’ of Supremacy Clause immunity. Last, the state then ‘bears the burden of coming forward with an evidentiary showing sufficient to raise a material issue of fact concerning the validity of Supremacy Clause immunity.”[28] Exactly what a threshold showing involves is unclear, but “the courts appear to treat it like a preliminary question. See Fed. R. Ev. 104(a) (2011).”[29] At any evidentiary hearing on this matter, witnesses are also likely to testify, and the defendant(s) may.[30]

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No, but they must specifically and unequivocally identify the facts that form the basis for the claim of immunity. The Supreme Court has spelled out the following parameters:

A defendant satisfies his burden under Mesa through “direct averments” and “competent proof.”

Simply put, the removing defendant must show (through at least specific and detailed pleadings) that he has a plausible (and not wholly insubstantial or frivolous) chance of raising a defense under the U.S. Constitution or federal law. Although the merits of that defense are not the focus at the removal stage, in criminal proceedings the defendant cannot simply say that because the acts were carried out under color of office (second prong of Mesa), a colorable federal defense (third prong of Mesa) applies.

The threshold to establish a colorable defense is relatively low.

A defendant need not testify.

It is unclear. As noted above, removal hearings are civil in nature, and adverse inferences may be permissible in a civil case against a defendant who invokes his Fifth Amendment rights in response to probative evidence offered against him. However, a defendant’s right to silence prohibits any adverse inference against him in a criminal case, and despite the civil nature of the removal process, the criminal nature of the underlying case creates a high-stakes situation where courts have been reluctant to draw adverse inferences. We are unaware of any case permitting an adverse inference in a removal hearing, and courts have ruled on both sides of the issue in habeas proceedings, which may be analogized to a removal hearing. That said, a defendant who seeks removal under the federal removal statute waives their Fifth Amendment right against self-incrimination in removal proceedings, “at least to the extent of disclosing in his application for removal all the circumstances known to him out of which the prosecution arose.”[40]

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If the defendant succeeds on its removal petition before the district court, sitting in its civil capacity, the court must notify the Fulton County Superior Court where the prosecution is pending, which must then cease prosecution.[41]

The State may then proceed with its prosecution against the removing defendant in federal court, applying state substantive law and federal procedure.[42]

The civil jurisdiction the federal district court has over the removal case will also cease, with the case being logged in the district court’s criminal docket. Previous proceedings and rulings of the state court are preserved in the federal court after removal until set aside.[43]

Following removal in a Supremacy Clause immunity case, defendants will often then move to have the indictment dismissed on immunity grounds, and evidentiary hearings are usually held on the matter. Where there is no dispute as to material facts, the courts agree that the district court should grant the motion to dismiss. Where there is a dispute as to material facts, it is unclear whether the courts or a jury should decide that dispute.[44] At evidentiary hearing(s), witnesses are usually called to testify, legal submissions are made, and exhibits introduced..[45]

There are two conflicting schools of thought. One view is that removal would apply only to the defendants for whom the federal court determines there is appropriate grounds for removal. This theory is based on the notion that removal in a state criminal prosecution is based on the applicability of federal defenses for the particular defendant.

The other view is that a judicial determination of removal for any defendant removes the entire case—for all defendants—to federal court, even if those defendants do not independently have cause for removal. Although there are relatively few cases in the criminal context, this is how courts have consistently handled removal where a defendant raises a federal defense in civil cases.[46] But courts have explained that states have a strong interest in retaining jurisdiction in criminal cases. Removal under 28 U.S.C. § 1442 in criminal cases is less common, and we are not aware of any criminal case in which one defendant’s removal forced the removal of other defendants.[47]

However, after the Heinze federal district court in the Northern District of Georgia said that both defendants had met the test in Mesa, it went on to suggest, in dicta, that even if the test had been met by only one defendant, the entire case could (even should or must) be removed. The court cited an Eleventh Circuit decision in the civil context for slander between two elected county district court officers that recognized “if one claim cognizable under Section 1442 is present, the entire action is removed, regardless of the relationship between the Section 1442 claim and the non-removable claims.”[48]

If the case is removed to federal court, DA Willis and her team would remain on the case as the prosecution.[49]

As discussed above, removal changes the forum but not the substance of the indictment. Therefore, state substantive law applies for the criminal violations of state law that are charged. The federal pardon power cannot apply to any of the state charges.

Federal procedural rules, including the federal rules of evidence, would apply to pretrial proceedings and the trial—as the case would then be prosecuted in federal court.

A district court’s order remanding a case back to state court is subject to appeal if the defendant’s removal is based on the federal official (§ 1442) removal provisions.[50]

However, federal courts do not appear to have answered whether the State can appeal a district court’s order denying remand (i.e., whether the order granting removal is appealable). In fact, there is a case currently pending before the Eleventh Circuit addressing whether it has jurisdiction over a criminal case filed in state court that was removed to federal court pursuant to § 1442(a)(1).[51]

The federal Speedy Trial Act, 18 U.S.C. Sec 3161, et seq, would apply.[52]

If the case is removed, the jury pool will be drawn from the 10 counties in the Atlanta Division of the United States District Court for the Northern District of Georgia. As can be seen from the below chart, those 10 counties in totality are slightly more favorable to Trump politically than Fulton County, but we caution that political choices are an imperfect indicator, and in our experience juries set them aside and decide cases fairly based upon the facts and the law. The Table below uses population statistics from the 2022 Census estimates and election statistics from the Georgia Secretary of State’s website.

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Editor’s Note: Readers may also be interested in Norman L. Eisen, Joshua Kolb, Joshua Stanton, Andrew Warren and Siven Watt, What to Expect When You’re Expecting a Trump Trial in Fulton County, Just Security, August 16, 2023

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2020 presidential election, election interference, Expert Backgrounder, Federal Rules of Criminal Procedure, Georgia, January 6th Attack on US Capitol, Litigation, Mark Meadows, Special Counsel Jack Smith