A couple of notable defendants are stuck in state court. State prosecutors have charged former President Donald Trump, his Chief of Staff Mark Meadows, and many others with an array of state criminal charges, ranging from falsifying business records to state RICO violations. Trump, Meadows, and four other codefendants removed their prosecutions from state to federal court under 28 U.S.C. § 1442, which permits removal of suits “for or relating to any act under color of [federal] office.” Yet federal district courts have concluded that removal is improper for Trump and Meadows, remanding their prosecutions back to state court.
That ends the matter of removal in most cases, as the decision to remand is usually unreviewable. But federal officer removal is an exception to that rule. Accordingly, both Trump and Meadows have appealed their remand orders, while other codefendants have requested a speedy trial in Georgia.
This combination — a state criminal court’s preparation for trial while a federal appeals court reviews removal jurisdiction — is cause for concern. These prosecutions present many issues of first impression that may tie the defendants’ venue together in a “come one, come all” approach to criminal removal. And the scope of appeal for remand orders, as the Supreme Court recently ruled, is vast. Just one successful appeal could therefore undermine state court proceedings and judgments, especially if it comes after a jury renders its verdict. And while some federal courts assign res judicata effect to state court judgments in such cases, it remains unclear whether that treatment is proper, particularly in the criminal context. These concerns should give pause to federal courts considering the reversal of remand orders.
The Rules of Removal
While plaintiffs and prosecutors choose where to file their lawsuits, defendants sometimes have a counterplay. Qualifying defendants have the right to remove their case from state to federal court. The federal court then determines whether removal was proper. If it was, the case will proceed in federal court. If not, the federal court will remand the case back to state court.
Defendants may desire removal for many reasons. Federal rules may favor defendants more than state rules do. Federal judges may be more familiar with the federal issues that justify removal in the first place. And federal juries may politically differ from their state counterparts. In Georgia, removal from the Atlanta-based state court to the federal Northern District of Georgia would expand the jury pool to more Republican-leaning parts of the state.
Removal usually occurs under 28 U.S.C. § 1441, covering all civil claims in state court that could have been filed in federal court. Here, however, § 1442 has been invoked, which includes both civil and criminal cases. Unlike in civil suits, a notice of removal in criminal cases does not immediately stop state court proceedings. Instead, a state court can proceed until the judgment of conviction, which cannot issue until remand.
Section 1442, however, leaves much unsaid. Ordinary removal under § 1441 requires the unanimity of codefendants, but no such rule applies to § 1442. While § 1441(c) expressly contemplates the exercise of supplemental jurisdiction over otherwise unremovable claims in a removed case, § 1442 is silent on the issue. For instance, say Meadows succeeds in his removal bid and proceeds to federal court. What happens to his codefendants, including those who never held federal offices? Should their cases also proceed in federal court, even as some have requested a speedy trial in state court?
Section 1442’s lack of detail has led to disparate conclusions. Eleventh Circuit precedent, as collected in Just Security, implies that “the entire case could (even should or must) be removed,” even if removal is proper for only one defendant. Professor Michael C. Dorf contends that federal courts may have discretion to retain all or part of a prosecution if federal officer removal grounds exist somewhere. Others suggest that the statute’s silence and the states’ traditional police power over criminal prosecution might overshadow other considerations, preventing the joinder of nonremovable parties.
The Review of Removal
The stakes are even higher in light of the appealability of remand orders. In 2011, Congress permitted appeals of any remand order for cases removed pursuant to § 1442. If the court of appeals affirms the district court’s remand, the case remains in state court. If the court of appeals reverses, the case will once again be removed to federal court. And, of course, these intermediate appellate decisions could be appealed to the Supreme Court.
These potential outcomes underscore the lose-lose nature of remand order appeals. Affirmance changes nothing — the state court continues as it did before. But reversal “re-removes” the case back into federal court, jeopardizing the state court’s progress. In a civil case, that outcome is inconvenient. In a criminal case against a former President, it is devastating. Trump will stand trial in New York in March, and two of his codefendants will be tried in Georgia next month. The state courts could proceed to trial and, potentially, a judgment of conviction as the appeals trudge through the federal courts. The reversal of a remand order could thus place federal courts in the position to demolish the entire progression of state court proceedings, and even the final verdict, in a former President’s prosecution.
The implications of reversal are magnified given that the scope of appealability extends to the entire remand order. The Supreme Court held in BP P.L.C. v. Mayor of Baltimore that so long as part of a remand order decides removal pursuant to § 1442 (which is appealable), the entire order is reviewable, even those other parts of the order regarding § 1441 (which is ordinarily not appealable). That is, if a remand order is partially premised on appealable grounds, the entire order becomes appealable, even on grounds that Congress expressly deemed nonappealable by themselves. Professor Dorf instead contends that “a decision to send all or part of the case back to state court is not directly appealable within the federal system.” But the inclusion of federal officer grounds gives the defendants appellate recourse for the entire “order,” not just the merits of their federal officer removal argument. It would thus include the scope of joinder in reversing the remand order, such that one successful appeal could implicate the venue of other codefendants before, during, or after trial.
Luckily, these are not completely uncharted waters. The Fifth Circuit noted in a 1987 bankruptcy case that 28 U.S.C. § 1738 requires federal courts to honor state court judgments, even after “re-removal,” as res judicata. The federal court would therefore reissue the state court’s final judgment (and perhaps any interlocutory ones as well). The Third and Ninth Circuits have also adopted this characterization. But imagine the indignation of Trump or his codefendants in such a scenario: that all along, they had the right to another court, another judge, and another jury in a federal venue, but because that decision came too late for them, they must be bound by the purportedly biased judgments of the state. The res judicata rationale trades fairness for finality, stripping the remedy from the right of removal. Accordingly, Judge Easterbrook opined in a Seventh Circuit criminal case that “a decision that the remand was improper would require [a defendant’s] conviction to be set aside.”
Realists might respond that the Second Circuit, Eleventh Circuit, or Supreme Court would fast-track their decisions far before these trials begin. But such acceleration comes at a cost. It would encourage federal courts to rush pivotal decisions to outrun a state court docket (a tall order, as described below). Congress amended the removal statutes only a decade ago, and the scope of § 1442 is far from settled. Considering Meadows’s appeal, an Eleventh Circuit panel is pondering whether defendants have a right to remove under § 1442 in the first place if they no longer hold federal office. If any legal issues were worth taking time to consider, it would be the ones presented in these momentous trials.
But on the state court side, deceleration is unlikely. Recall that removal never stopped the clock for state criminal courts before remand, let alone during the pendency of appeals. In line with Younger abstention, a “basic doctrine of equity jurisdiction” prohibits federal interference with state prosecutions. A stay of a remand pending appeal, which the federal district court has already rejected, would therefore be unsuitable in a criminal case. The Georgia state court, denying a stay of its own proceedings, asserted that “as appeals to the Eleventh Circuit and the United States Supreme Court could take months to resolve even if expedited, the Court does not intend to delay pretrial litigation.” Acknowledging “the issue of double jeopardy” if removal is granted midtrial, the court also severed the proceedings of the non–speedy trial defendants. But if the venue of criminal codefendants must be shared in a successful removal, severance is futile. A successful appeal from Meadows would unsettle not only his own trial (if it were in progress), but also that of his codefendants invoking their speedy trial rights. Speedy state trials and sluggish federal appeals could thus result in a disastrous cart-before-the-horse situation, resolving questions of jurisdiction after those of admissibility, privilege, and guilt.
By statute, the federal courts must consider these appeals. But they ought to consider the costs that accompany late-game shifts between state and federal venues. Given the far-reaching and unpredictable consequences of reversing remand orders in criminal cases, adherence to federalism may require leaving well enough alone in state court.