The so-called removal statute was enacted by Congress in 1789 to protect federal officials from being harassed and prosecuted by state officials.
There are three conditions that must be met for defendants to move their cases to federal court: At the time of the alleged offense, they must have been a federal official; they must be facing charges “for or relating to any act under color of such office;” and they must raise “a colorable federal defense.”
Trump may be able to meet those conditions, said Atlanta defense attorney Andrew Fleischman.
“The former president is going to claim that he was trying to enforce some sort of federal law” as he pressured Georgia officials to overturn his election loss, Fleischman said. “And then the only question is: Is it colorable?”
Fleischman said a colorable argument “means plausible, just barely plausible, something that you can say with a straight face. And he could. Could he say with a straight face he was trying to ensure election integrity? Yes, he could make that claim.”
It’s also possible that lawyers for
Jeffrey Clark, who was an assistant U.S. attorney general could try to remove his case to federal court. And there is court precedent that could allow someone who was acting as an agent of a federal official to make such a request.
Trump’s lawyers have already tried but failed to remove the hush money case brought against the former president in state court in Manhattan to the U.S. District Court in New York.
In that case, Trump faces felony charges involving payments he made to porn star Stormy Daniels. Trump is accused of falsifying business records in 2017 to hide $130,000 in reimbursements paid to his then-attorney, Michael Cohen. Trump has denied any wrongdoing and denied having an affair with Daniels.
In July, U.S. District Judge Alvin Hellerstein in New York said Trump’s lawyers failed to show that the conduct charged in the indictment related to any act performed by Trump as president.
