Every law student learns that state civil cases may be “removed” to federal court under certain conditions – usually when the case presents a question of federal law, or the parties are residents of different states. See 28 U.S.C. § 1446. But until recently, I had never heard of a state criminal case being removed to federal court. Former President Trump and several members of his administration have requested exactly that, and there are federal statutes that allow for it under limited circumstances. This post digs a little more deeply into the removal of criminal cases. What are the relevant statutes? Removal is possible under at least 28 U.S.C. § 1442 (covering criminal prosecutions of federal officers or agencies for acts performed under the color of their offices); 28 U.S.C. § 1442a (covering criminal prosecutions of members of the armed forces for acts performed under the color of their offices); and 28 U.S.C. § 1443 (covering criminal prosecutions that implicate certain civil rights issues; but note that the potentially broad sweep of this statute was limited by judicial interpretation in City of Greenwood v. Peacock, 384 U.S. 808 (1966)). What is the procedure for removal? The procedure for the removal of state criminal cases to federal court is set out in 28 U.S.C. § 1455. It says that a defendant seeking removal must do so promptly – generally within 30 days of the state court arraignment. The defendant simply files a notice of removal in federal court. If the basis for [...]
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