Now that Fulton County, Georgia, District Attorney Fani Willis has indicted former President Donald Trump for his effort to overturn the 2020 presidential election, Trump’s first chessboard move is likely to be a motion to “remove” the case—that is, to transfer it from state court in Atlanta to federal court in the Northern District of Georgia. This maneuver shouldn’t work, as it didn’t work in July in New York, but once it happens, two things are sure: It will command our attention, and it will introduce a potential for delay—Trump’s favorite sort of ploys. Federal law provides that a prosecution begun in a state court may, within 30 days, be “removed” to federal court if it relates to “any act” by “any officer of the United States” taken “under color of such office.”
This requirement, under long-standing Supreme Court precedent, means that the conduct must have involved performance of the officer’s job, and the officer must raise a “colorable federal defense” to the criminal charge. In essence, these two factors will merge in Trump’s claim to have been acting on behalf of the United States in trying to change the outcome of Georgia’s election. He will contend that he was just doing his job as president by making sure Georgia was conducting its vote count according to the law.
The irony of Trump posing as the federal protector of the electoral process is rich indeed. So is the historical irony of Trump seeking refuge in federal court under the removal law. [Continue reading…]