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[This article was co-authored with Seth Barrett Tillman]
Last month, a Manhattan grand jury indicted Donald J. Trump for violating state law based on alleged “hush money” bills against Stormy Daniels. Trump remanded the case to federal court. “US Official” to withdraw a claim from state court to federal court. But the former president can only refer the case to federal court if he was a “US official. “
On Tuesday, Alvin Bragg, the U. S. attorney for the District of New York, filed a brief in federal court opposing the deportation move. Bragg presented arguments as to why the withdrawal was not appropriate. But the last segment of the brief claimed that Donald Trump, while president, was not an “official of the United States. “Part IV of the report (pp. 30) explains this position:
The above arguments run counter to the defendant’s attempt to dismiss this prosecution for state fraudster and require that this case be referred to state court. He an “officer. . . of the United States” entitled to invoke impeachment under 28 U. S. C. § 1442(a)(1).
In interpreting a variety of other constitutional and legal provisions, the Supreme Court has long interpreted “official” to exclude the president and vice president because those officials are elected to their offices rather than appointed. See Free admission. Fund v. Public Co. Accounting Oversight Bd. , 561 U. S. 477, 497-98 (2010) (“Other persons do not vote for ‘Officers of the United States'” (citing U. S. Const. art. II, § 2Array cl. 2)); United States v. Mouat, 124 U. S. 303, 307 (1888) (“[A] user in the service of the government” who does not take office by appointment . . . he is not, strictly speaking, a U. S. official. “). (emphasis added).
We are very much in favour of this argument. In fact, we have argued for years that the president is not an “official of the United States. “We did it most recently two weeks ago at Lawfare. And in Lawfare, we note that the district court deserves to seek the opinion of the Ministry. This is all the more applicable because Bragg stated that the Justice Department stores its view that the president is not an “official of the United States. “
The executive branch stores this opinion. See, p. Part One Hundred of the President and Vice President 2 (December 19, 1974) (“[W]hen the word “official” is used in the Constitution, it invariably refers to someone other than the President or Vice President . . . . This use of the word “official” in the Constitution has led the Department of Justice to systematically interpret the word [“official”] in other documents as if it were not added to the president or vice president, unless otherwise specified. “) (Ex. 23). (emphasis added).
Tillman wrote about this Scalia memo in December 2016.
Bragg concludes:
Thus, the Court concludes, consistent with the views of the Supreme Court, the executive branch, and the defendant himself, that the president is not an “official” of the United States and therefore cannot invoke the removal of a federal official under the age of 28. USC § 1442(a)(1). (emphasis added).
In the short term, Bragg’s argument could hurt Trump on the referral motion. If Trump is not a “U. S. official,” he can only grant the impeachment petition if he affirmatively concludes that Trump is an “officer of the United States. “
However, in the long term, such a discovery may have ramifications in the far too distant future. . ” And we write that the president is an “official of the United States” for the purposes of segment 3. If Bragg succeeds here, and the federal courts adopt the argument that Trump is (or was) an “official of the United States “states” for purposes of federal repeal law, then this precedent can be cited through Trump in debates and litigation related to Section 3. Perhaps this possibility of setting a precedent on this factor is one more reason to seek the recommendation of the Department of Justice.
There are many reasons why the Federal Court may rule here. And the Federal District Court might, in fact, not respond to the “officers” inquiry. Still, you can succeed in this problem, and for this reason, we will be very attentive. this litigation in Manhattan.
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Josh Blackman is a professor of constitutional law at South Texas College of Law in Houston, a research associate at the Cato Institute, and president of the Harlan Institute. Follow it on @JoshMBlackman.