Bragg Manhattan DA charges tfg? Hush money. tfg “INDICATED!” - CONVICTED!!

[realist]

This motion should not succeed re the removal but it may serve its real purpose. Delay.

The attempt to move the case into federal court appears to be a long-shot bid to try to undercut Manhattan District Attorney Alvin Bragg’s case against Trump, who pleaded not guilty last month to charges of falsifying business records with the intent to conceal illegal conduct connected to his 2016 presidential campaign.

https://www.msn.com/en-us/news/politics ... r-AA1aJd0e

[RVInit]

He probably also knows that if he's found guilty the next Republican president will pardon him if it's a federal case.

[Slim Cognito]

Goomba?

Approved.

[p0rtia]

If the case was removed to federal court, would that court then be able to include the election interference or is it campaign finance violations as a clear felony case?

[chancery]

Link to the notice of removal: https://storage.courtlistener.com/recap ... .1.0_1.pdf

[northland10]

Since this is a criminal trial, isn't Habeas Corpus the proper route? That said, IIRC, federal courts do not like interfering in local criminal cases unless absolutely necessary (and it is about the actual Constitutional issues not Taco/Trump's feeling that "I was President, so a state can't touch me."

It is, of course, just a delay tactic anyway.

[chancery]

https://twitter.com/innercitypress/stat ... 629110784

Inner City Press
@innercitypress
Update: Trump's bid to remove the Alvin Bragg prosecution from state to Federal court in SDNY has this morning been assigned to Judge Ronnie Abrams

A comment to the tweet mentions that Judge Abrams recused herself from a previous Trump case because her husband was a Mueller prosecutor.

So I guess it's possible that she will recuse again, although maybe not (further in the past; possibly less related, but I just dunno).

She was a faculty member for a CLE course that I took. Extremely smart and thoughtful (qualities that don't always go together). Seemed like a very good judge.

[chancery]

Since this is a criminal trial, isn't Habeas Corpus the proper route?

No. Habeas Corpus is a remedy for people in custody, typically these days after trial and conviction, but not always. Federal habeas law has become fiendishly complicated, in part because of legislation designed to keep the prison system full. But we don't have to worry about that here.

Side note: In New York State, when prosecutors need to bring an incarcerated person to court, they obtain a writ of habeas corpus directed to the prison authorities, to release defendant into the custody of the prosecutors.

That said, IIRC, federal courts do not like interfering in local criminal cases unless absolutely necessary (and it is about the actual Constitutional issues not Taco/Trump's feeling that "I was President, so a state can't touch me."

Mostly true, but federal officer removal is a big exception to that principle. 28 U.S.C. § 1442(a)(1), permits the removal of cases commenced in state court against “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof . . . for or relating to any act under color of such office.”

https://twitter.com/JoyceWhiteVance/sta ... 0850571264

Joyce Alene
@JoyceWhiteVance

There's a Substack for everything: I wrote about the law governing removal of state prosecutions to fed'l court in the context of a possible Trump prosecution in Georgia. The law is the same, but the NY case is weaker because Trump wasn't POTUS.

https://joycevance.substack.com/p/can-a ... ransferred

It is, of course, just a delay tactic anyway.

Sure, and I'm cautiously optimistic that it will be rejected, but it's certainly not frivolous. It would be crazy for Trump's lawyers not to try it, as they certainly will if he is indicted in Georgia.

Edit: fixed a couple of things.

[Maybenaut]

I looked at the various federal removal statutes, and what wasn’t clear to me was whether they apply to former officers. Trump may have* been an officer when the acts were committed, but he wasn’t an officer when he was indicated.

* Even if he was still in office, is an elected President an officer for the purposes of the statute? I don’t know.

[chancery]

I think that this came up when the Justice Department removed Jean Carroll's first defamation action to federal court under the Federal Tort Claims aka Westfall Act. IIRC, it was accepted that the president was a federal officer, but disputed whether he was an employee of any federal agency or department, the formulation used in the Westfall Act.

As for applying to a former officer, on the basis of nothing I'll opine that it would be a pretty big loophole in the removal scheme if states could indict former federal officials for acts done while in office. And some of the conduct that is the subject of the indictment took place while Trump was president.

As far as whether the conduct alleged in the indictment included "act[s)] under color of such office," I would hope not, but determining what is and isn't within the scope of a President's duties can raise some subtle and difficult factual and policy questions. Whether it does so here ... we'll see.

I put a superfluous parenthesis in the brackets following the word "act" in the quotation, to the avoid triggering the strike-out code.

Is there a code for disabling codes?

[Maybenaut]

Other than delay, what does this get Trump? Bragg would still prosecute, and the jury pool would still be from SDNY. Is a federal court, and the Federal Rules of Criminal Procedure, really that much more defense friendly?

[raison de arizona]

If he gets elected, he could try to pardon himself.

[chancery]

Interesting question.

The Constitution gives the President "Power to grant Reprieves and Pardons for Offenses against the United States." It would would be a federal court judgment of conviction, but a state court crime, so not an "offense against the United States."

So probably not, but he'd likely try it.

[somerset]

If any republican gets elected, he could probably get pardoned.

That may be part of his long term strategy - Offer to throw his support to a republican candidate with the tacit understanding that he pardon tfg for any federal crimes. Then work to get any state level indictments removed to federal court.

[chancery]

The President can't pardon a conviction for a state crime. That's pretty basic.

Trump A Republican president could try to interfere with the DOJ's prosecution of the state crime in federal court, and would certainly appoint lawless goons to the DOJ who would have no hesitation about directing the line prosecutors to dismiss the indictment. Let's see ...

Rule 48 of the Federal Rules of Criminal Procedure provides:

Dismissal. (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.

(emphasis added)

I don't know anything about the extent of a court's discretion to refuse consent, and I no longer have access to Westlaw. A good federal judge would, at a minimum make it hard for the prosecution to dismiss, and might even be able to deputize the NY AG's office to continue the prosecution if the DOJ refuses to go forward, or is obviously trying to sabotage the case. Or some former NYC prosecutors. Dunno how they would get paid, but it might be possible.

Edit to substitute "Republican President" for "Trump." If Trump were the next president, the DOJ would likely succeed in staying any pending prosecutions, based on its long-held view of a sitting president's absolute immunity.

[chancery]

Just remembered that this issue came up in spectacular fashion during the prosecution of Michael Flynn.

It was a sorry, sordid mess. In brief, and maybe missing some important aspects: Flynn pled guilty, twice, and then fired his lawyers and hired Sidney Powell. Powell unsuccessfully tried to withdraw the guilty pleas. The district judge, Emmet Sullivan, refused to permit Flynn to change his plea, but deferred sentencing because Flynn was still cooperating. Then the DOJ moved to dismiss the indictment. Sullivan denied the motion and scheduled sentencing.

The DOJ sought a writ of mandamus to compel Sullivan to dismiss, which was granted on a 2-1 vote by a D.C. Circuit panel. The full court en banc overruled the panel. A couple of months later Trump granted Flynn a full pardon. Judge Sullivan had no choice but to dismiss in face of the pardon, but, as I recall, he issued a somewhat irregular opinion explaining why the situation sucked.

So, on the strength of the D.C. Circuit's en banc decision, which I haven't read, the SDNY judge could deny a DOJ motion to dismiss the case ... until a Trump DOJ pushed the issue up to the Supreme Court, which would likely use the shadow docket to compel the judge to dismiss.

But of course, IANACrL and haven't researched this.

Edit: see underscored text.

[chancery]

The DC Circuit's 8-2 decision denying mandamus, In Re: Michael T. Flynn, 973 F.3d 74 (D.C. Cir. 2020) (en banc), is here:
https://www.cadc.uscourts.gov/internet/ ... 0-5143.pdf

I skimmed it very quickly. It's a very limited holding. Judge Sullivan hadn't ruled on the government's motion to dismiss, He had appointed a distinguished former judge, John Gleeson, as an amicus curiae to present arguments in opposition to the government's motion to dismiss. That was a strong signal, and arguably cheeky. He had also set a schedule for third-party amicus briefs to weigh in on the question, which was quite cheeky and possibly improper.

Pretty much all the D.C. Circuit did was sent the case back to Judge Sullivan to rule on the motion to dismiss. It didn't offer much encouragement for Judge Sullivan to deny the motion and force the prosecution to continue:

[T]he district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.

So dunno. However, even the dissent, written by Judge Rao, an extreme right-wing kook appointed by Trump, acknowledged that denial of a Rule 48 motion to dismiss might be appropriate in extraordinary cases of bribery or other forms of bad faith.

But on the whole, the idea that a district court could continue a Trump prosecution in the face of opposition from the DOJ under a Republican administration doesn't look terribly promising.

[chancery]

https://twitter.com/innercitypress/stat ... 3383173121

Inner City Press
@innercitypress
Update: Trump's bid to remove the Alvin Bragg prosecution from state court to Federal SDNY has been reassigned from Judge Abrams (whose husband was on the Mueller team) to Judge Hellerstein, five of whose cases I covered this morning, stories coming.

Not surprising. Nothing wrong with Hellerstein, as far as I know. He ordered the DOJ to release Michael Cohen to home confinement, accepting Cohen's argument that the DOJ was preventing his transition from incarceration to home confinement in retaliation for writing a book about Trump.

Although I have a dim recollection that he might once have done something a bit loopy in a high profile case. Not necessarily bad, just ... odd.

[chancery]

This might have been what I was trying to remember.

N.Y. Times May 2, 2010: Empathetic Judge in 9/11 Suits Seen by Some as Interfering

As the federal judge who has overseen the wrongful death, property damage and personal injury lawsuits arising from 9/11, Judge Hellerstein, 76, has developed a visible empathy for both the families of the victims and for the workers who fell ill after the rescue and cleanup efforts.

The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years.

A Bronx native and Columbia Law School graduate who was appointed to the bench by President Bill Clinton in 1998, Judge Hellerstein has shown independence and a strong adherence to the First Amendment and to transparency, for example. He ordered the government to release videos and photos from the Abu Ghraib prison in Iraq after the American Civil Liberties Union sued under the Freedom of Information Act. In a 1999 decision against the New York Police Department that was later overturned, he ruled that members of the Ku Klux Klan could wear their traditional masks at demonstrations.

Charles G. Moerdler, a friend and former co-partner at the firm Stroock & Stroock & Lavan, said that Judge Hellerstein, an Orthodox Jew who has been active on the board of several Jewish organizations, was motivated by “a very high standard of morality and decency.”

As a litigator representing banks and large corporations, he said, the judge was willing to tell a bank client being sued by an investor over money losses to reconsider its position. “He’d say, I can litigate this, and I can fight this, but in fairness, this person was injured,” Mr. Moerdler said.

Gift link: https://www.nytimes.com/2010/05/03/nyre ... =url-share

[Volkonski]

Trump prohibited from posting evidence in hush money case to social media, judge rules
Judge Juan Merchan largely sided with a request from the Manhattan district attorney's office regarding what Trump can publicly say about certain aspects of the case.

https://www.nbcnews.com/politics/donald ... -rcna83444

In his order, Judge Juan Merchan largely sided with the Manhattan District Attorney Alvin Bragg by limiting what Trump can publicly disclose about new evidence from the prosecution before the case goes to trial.

The order states that "any materials and information provided by the People to the Defense in accordance with their discovery obligations...shall be used solely for the purposes of preparing a defense in this matter."

Merchan's order said that anyone with access to the evidence being turned over to Trump's team from state prosecutors “shall not copy, disseminate or disclose” the material to third parties, including social media platforms, “without prior approval from the court."

It also singles out Trump, saying he is allowed to review sensitive "Limited Dissemination Materials" from prosecutors only in the presence of his lawyers, and "shall not be permitted to copy, photograph, transcribe, or otherwise independently possess the Limited Dissemination Materials."

[chancery]

The protective order is here: https://s3.documentcloud.org/documents/ ... 5-8-23.pdf

But I'm about how Judge Merchan has power to issue this order, which is dated May 8. .

If it's like the removal proceedings with which I'm familiar, the minute the federal shipping clerk at SDNY stamped "FILED" on the notice of removal, which took place on May 4, the Judge Merchan had no more power to issue further orders in the prosecution than one of the pigeons hanging around Foley Square -- unless, but not until, the federal court remands the proceeding back to NY Supreme.

However, I see that the notice of removal has precatory language ("WHEREFORE, this case should be removed to Federal Court"), which I would not have included, so maybe there's something different about federal officer removal.

Edit: there is, see below: viewtopic.php?p=192111#p192111

[Luke]

Seeing the story Chancery posted, Judge Hellerstein was 76 in 2010. Good for him that he's still able to adjudicate cases.

[chancery]

However, I see that the notice of removal has precatory language ("WHEREFORE, this case should be removed to Federal Court"), which I would not have included, so maybe there's something different about federal officer removal.

It turns out that there's something different about the procedure for removal of criminal prosecutions:

28 U.S. Code § 1455 - Procedure for removal of criminal prosecutions

(b)Requirements.—

(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

[Kendra]

JUST IN: Federal judge in NY sets June 27 hearing and briefing schedule on Trump’s removal of his Manhattan criminal case to federal court.

Judge also emphasizes that proceedings in state court may continue.

[northland10]

And Chancery called it.