filly wrote: ↑Sat Mar 20, 2021 11:29 am
Also, Jane Mayer said yesterday the rumors are flying that Ron DeSantis will refuse to extradite Trump if he is indicted in NY. I seem to remember that Pritzker had to sign off on Kyle Rittenhouse being extradited from Illinois to Wisconsin, but I assumed that was a ministerial duty. But I always thought Congressional certification of the Electoral College was a ministerial duty. I would be interested in FRP's knowledge of state to state extraditions and the role of a Governor to refuse to do so.
I can help here, as I have represented a number of clients who were being extradited from Wisconsin to stand trial in another state for crimes they had allegedly committed. The role of the governor in extraditions is indeed supposed to be purely ministerial under both the Extradition Clause of the Constitution and the relevant federal statute, 18 USC 3182. Remember that extradition is a judicial proceeding, like any other criminal or civil case. The substance of the accusations generally doesn't matter. All we're really concerned about it is making sure that the extradition request is
bona fide and the person in court is actually the person the requesting state wants to put on trial. (Don't laugh too much; those kinds of mistaken-identity cases do happen from time to time.)
Fundamentally, someone whose extradition has been sought has two real options: The first option is to sign a waiver of extradition (basically a guilty/no-contest plea for extradition), ending the proceedings and opening the window for the requesting state to come get them. The second option is to make the state jump through the hoops to complete the extradition, including the obtaining of a governor's warrant. That's literally just a piece of paper signed by the governor or his or her designee authorizing the person to be extradited to the requesting state. Once one of those things happens to the court's satisfaction, the extradition proceeding is closed and the clock starts on the requesting state to come and get the defendant. In most states the time limit is 30 or 60 days, but some states allow up to 90 days. Yes, I have personally seen cases where the defendant waived extradition or a governor's warrant issued, but the requesting state never picked them up within the time limits. Then the defendant has to be cut loose by the asylum state unless they have some other reason to hold them.
Getting the governor's warrant can take a little while. I've frequently advised clients in complex felony extraditions not to waive extradition at their initial appearance in order to buy time to retain counsel in the state where they are facing charges. Then, once their lawyer is in place wherever they're going, that lawyer and I will coordinate the timing of a waiver in order to try to control (as best we can) the timing of the defendant's transport. But that's just a tactical maneuver to buy a little time, not an actual attempt at mounting a defense to the extradition.
Now, for about 100 years, it was actually the case that governors could outright reject an extradition request. The case law on that goes back to 1860 with the case of
Kentucky v. Dennison, 65 US 66, which more or less said that governors have an affirmative duty to approve an extradition, but that federal courts (which are the only courts with jurisdiction in state-versus-state litigation) have no authority to compel them to do so. The result of that decision was to essentially empower governors to reject extraditions as and when it suited them.
That changed in 1987, when SCOTUS overturned
Dennison in
Puerto Rico v. Branstad, 483 US 219.
Branstad affirmed that governors have a duty to return fugitives to the requesting state, and granted federal courts the authority to enforce that duty. An extradition request can be rejected by a governor, but only for certain reasons: 1) facial deficiency of the extradition documents, 2) the defendant hasn't actually been charged with a crime (you can't request extradition of someone you're investigating before charging them, in other words), 3) the person being held is not actually the fugitive being requested, or 4) the person in question is not a fugitive at all (beats the hell out of me how that would happen). Oh, and also governors can delay authorizing extradition under the Interstate Agreement on Detainers (IAD) if the person to be extradited is already serving a sentence in the asylum state. That's not in the
Branstad decision, it's just the effect of the IAD, which has been adopted by all 50 states and the federal government.
So, what does all this mean? It means that - assuming Trump is charged in New York state courts for something, there are opportunities to delay the process, but as long as everything is procedurally in-order, Governor DeSantis can't reject the extradition request. If he tried to, he could be held in contempt by a federal judge, or the US Marshals could be sent with a court order to take custody of Trump and effect the extradition.
Hope that helps.