Removal of Criminal Cases to Federal Court: Two Dozen FAQ's

[Roland99]

Removal of Criminal Cases to Federal Court: Two Dozen FAQ’s
https://www.justsecurity.org/87884/removal-of-criminal-cases-to-federal-court-two-dozen-faqs/

On August 14, 2023, a Fulton County, Georgia grand jury returned a 41-count indictment against former President Donald Trump and eighteen other individuals for a conspiracy to overturn the legitimate 2020 presidential election results in that state. Five of the defendants have filed notices of removal to have the case transferred from Georgia state court to federal court.[1] Defendants bear the burden to show they are federal officers (three of the five do not appear to have been), that the conduct was plausibly official and that they have a plausible defense based in federal law. The bar is a low one and the background law is favorable to true federal officers but removal is by no means automatic and is often denied. Among the results of a successful removal to federal court is a different jury pool, a different judge, and different procedural rules such as the absence of video cameras in federal trials.

This article provides detailed information about all that and other general and specific questions involving removal.

We welcome readers’ feedback and additional information

Table of Contents

GENERAL QUESTIONS ABOUT REMOVAL
What is the basis for removing a state prosecution to federal court?
What is the reason behind removal?
What is the legal standard for removal?
ANALYZING THE LEGAL STANDARD
Who counts as an officer of the United States?
What constitutes “for or relating to any act under color of such office”?
What constitutes a “colorable federal defense?”
What’s the difference between the legal standard to establish removal and immunity?
Does the fact that a defendant was involved in political activity using campaign funds affect the analysis?
Can a defendant have a removable colorable defense when accused of obstruction of justice or perjury?
REMOVAL PROCEDURE
What is the process for removal?
Which court hears the removal case and under what procedures?
What is the evidentiary standard in a removal hearing?
What evidentiary rules apply in a removal hearing?
What is the difference between the standard for removing a case based on the Supremacy Clause immunity and succeeding at asserting the immunity?
HOW DOES A DEFENDANT ESTABLISH REMOVAL IS WARRANTED?
Must a defendant admit the conduct in question to establish an immunity defense?
How does a defendant establish a colorable defense?
Practically speaking, how does a defendant meet their burden of proof? Must they testify?
If a defendant invokes their Fifth Amendment right, is the court able to draw any adverse inference?
WHAT HAPPENS IF THE CASE IS REMOVED?
What happens if the case is removed based on Supremacy Clause immunity?
If one defendant is removed to federal court, are the other defendants also removed?
What happens to DA Willis and her team if the case is removed?
What rules and laws apply for a case that has been removed?
Can the decision to grant removal or grant remand be appealed?
If the case is removed, which Speedy Trial Act would govern–state or federal?

All of the table of contents are clickable links to those sections

Simple and easy to read and understand what can and cannot justify a removal to Federal court

[LetMyPeopleVote]

1. This is a good roadmap for this issue

Link to tweet