Federal Officer Criminal Case Removal

Abstract

Recent events have brought the federal officer removal statute to the fore.  The statute allows a defendant to remove a criminal prosecution to federal court, provided that the allegedly criminal behavior was performed by the defendant as a federal officer under color of office and provided that the defendant has a federal defense.  Current litigation has exposed several open, important questions under the statute, which this Article confronts.  On the question of who qualifies as an “officer” who can remove under the statute, it argues that removal is available both to former officers and to presidents.  On the question of how to determine whether prosecution of an inchoate crime—such as conspiracy—is removable, it invokes Supreme Court precedent to argue that the key inquiry is whether the officer’s official duties are essential to the alleged criminal conduct, but it also notes that a recent statutory amendment suggests even broader availability of removal.

The Article then turns to criminal cases with multiple charges and multiple defendants.  It argues that a defendant must justify removal of each charge under the statute separately; a charge without an independent basis for removal should remain in state court.  In a case with multiple defendants, each defendant should be treated separately.  The acquiescence of co-defendants should not be required for federal officer removal.  Moreover, the federal court should hear only the charges (appropriately removed) against that defendant; charges against other defendants should remain in state court (absent a valid basis for removal for each charge).

Keywords: criminal procedure, constitutional law, federal courts, federal jurisdiction, federal officer case removal, federal court removal of criminal prosecutions

JEL Classification: K10, K14