I taught federal jurisdiction at Northwestern Law School for at least fifteen years, from 1990 to 2005, and wrote several law review articles on the subject. I have long admired federal deportation statutes, which allow federal officials and those acting under U.S. law to move cases from state to federal court. Commonly seen Neagle case, 135 U.S. 1 (1890). One such law was passed during Reconstruction in 1875 after the Civil War to prevent the 11 former Confederate states from harassing or oppressing federal officials or persons obligated to act under federal law.
State judges are usually elected, and they can sometimes be biased based on race, gender, politics, or religion. That bias was evident in both criminal and civil lawsuits filed this year in New York state against former President Donald Trump. These cases are being heard in one of the most liberal boroughs, one of the most liberal cities, one of the most liberal states in the country.
Regional bias against former presidents is sometimes quite pronounced. The New York civil and criminal cases filed against former President Donald Trump are evidence of this fact. This makes broader recall statutes necessary and appropriate so that talent is not prevented from running for President of the United States.
The House should pass a bill, now before the House, to move such cases to federal court. As I have explained before on this blog, former President Trump’s conviction in the Manhattan trial court was unconstitutional under the First Amendment. Trump’s conviction therefore raises a major federal question that the U.S. Supreme Court should decide before voters go to the polls this November. The House of Representatives could speed up the process through the deportation bill currently before the House.
Any legislation ultimately passed should allow for the dismissal of civil and criminal cases. Former President Trump lost a civil lawsuit with damages estimated at approximately $450 million that also raised significant federal issues under the Due Process Clause of the Fourteenth Amendment and an Eighth Amendment excess penalty claim. Congress should pass a broad recall statute that would at least cover state criminal and civil claims against the former president of the United States. This is necessary and justified so that talented people in the future will not be discouraged from running for president.
I believe that such a statute should not only apply to former Presidents of the United States. It should also apply to former Vice Presidents and all former officials of the United States. It’s easy to imagine a former vice president or official of the United States being harassed by elected state attorneys and judges. Even former members of Congress should be allowed to move civil and criminal cases from state to federal courts.
The sad truth is that, by and large, state prosecutors and judicial officials are more partisan and less legally intelligent than lifelong federal judges. This is because state judges and district attorneys are elected at the state level. There are many excellent state Supreme Court and lower court judges and district attorneys. However, at least former Presidents of the United States should be guaranteed access to the federal lifetime judiciary when indicted or prosecuted. This is not just justice. There is also a need to ensure that talented individuals are not prevented from running for or holding federal office in the future.
