[House Report 119-28]
[From the U.S. Government Publishing Office]


119th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {       119-28

======================================================================



 
PROMPTLY ENDING POLITICAL PROSECUTIONS AND EXECUTIVE RETALIATION ACT OF 
                                  2025

                                _______
                                

 March 21, 2025.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Jordan, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1789]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1789) to amend title 28, United States Code, to 
clarify the removability of certain actions against current and 
former Presidents and other senior Executive officials, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................    15
Committee Consideration..........................................    16
Committee Votes..................................................    16
Committee Oversight Findings.....................................    21
New Budget Authority and Tax Expenditures........................    21
Congressional Budget Office Cost Estimate........................    21
Committee Estimate of Budgetary Effects..........................    21
Duplication of Federal Programs..................................    21
Performance Goals and Objectives.................................    21
Advisory on Earmarks.............................................    22
Federal Mandates Statement.......................................    22
Advisory Committee Statement.....................................    22
Applicability to Legislative Branch..............................    22
Section-by-Section Analysis......................................    22
Changes in Existing Law Made by the Bill, as Reported............    23
Dissenting Views.................................................    26

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Promptly Ending Political Prosecutions 
and Executive Retaliation Act of 2025''.

SEC. 2. REMOVAL OF CERTAIN ACTIONS.

  (a) In General.--Section 1442 of title 28, United States Code, is 
amended--
          (1) in subsection (a)--
                  (A) in the matter preceding paragraph (1), by 
                inserting ``, upon a prima facie showing by the 
                removing party that the standards for removal are 
                met,'' after ``removed by them''; and
                  (B) in paragraph (1)--
                          (i) by striking ``or any officer (or any 
                        person acting under that officer) of the United 
                        States or of any agency thereof,'' and 
                        inserting ``or any person who, at the time of 
                        removal, is an officer of the United States (or 
                        any person acting under that officer) or of any 
                        agency thereof, or was previously such an 
                        officer,''; and
                          (ii) by inserting ``(including a 
                        discretionary exercise of any authority of such 
                        office)'' after ``color of such office''; and
          (2) by adding at the end of subsection (a) the following:
          ``(5) The President or Vice President for or relating to any 
        act while in office or where the State court's consideration of 
        the claim or charge may interfere with, hinder, burden, or 
        delay the execution of the duties of the President or the Vice 
        President.
          ``(6) A former President or Vice President for or relating to 
        any act while in office.''.
  (b) Application.--The amendments made by subsection (a) shall apply 
to a civil action or criminal prosecution pending on the date of 
enactment of this Act or commenced on or after such date.

SEC. 3. PROCEDURE FOR REMOVAL OF CRIMINAL CASES.

  (a) In General.--Section 1455(b) of title 28, United States Code, is 
amended--
          (1) in paragraph (3)--
                  (A) by striking ``shall not'' and inserting 
                ``shall''; and
                  (B) by striking ``except that a judgment of 
                conviction shall not be entered unless the prosecution 
                is first remanded'' and inserting ``and no judgment of 
                conviction shall be entered unless the prosecution is 
                remanded'';
          (2) in paragraph (4), by striking ``promptly. If'' and 
        inserting ``promptly and where a prima facie showing 
        demonstrating the basis for removal is made, the matter shall 
        be removed. Only if''; and
          (3) in paragraph (5)--
                  (A) by inserting ``summary dismissal or the'' after 
                ``does not order the'';
                  (B) by striking ``an evidentiary hearing'' and 
                inserting ``a hearing'';
                  (C) by inserting ``including dismissal under section 
                1456'' after ``require''; and
                  (D) by inserting ``or dismissal ordered'' after 
                ``permitted''.
  (b) Application.--The amendments made by subsection (a) shall apply 
to criminal prosecutions pending on the date of enactment of this Act 
or commenced on or after such date.

SEC. 4. OFFICIAL IMMUNITY.

  (a) In General.--Chapter 89 of title 28, United States Code, is 
amended by adding at the end the following:

``Sec. 1456. Official Immunity

  ``(a) Immunity.--In any case that is subject to removal under section 
1442(a), a Federal official shall be presumed to have immunity under 
article VI, clause 2 of the Constitution of the United States from any 
charge or claim made by or under authority of State law which may only 
be rebutted by clear and convincing evidence that the official was not 
acting under the color of such office or on account of any right, title 
or authority claimed under any Act of Congress for the apprehension or 
punishment of criminals or the collection of the revenue.
  ``(b) Determination of Immunity.--For purposes of making a 
determination of immunity under subsection (a), the following may not 
be admitted into evidence:
          ``(1) The nature, elements or any other aspect of the charge 
        or claim made by or under authority of State law.
          ``(2) An act alleged to be official that is not the subject 
        of the charge or claim made by or under authority of State law.
  ``(c) Representation.--In any case that is subject to removal under 
section 1442(a) that names a Federal official as a party, the Attorney 
General may--
          ``(1) represent such Federal official for any charge or claim 
        made by or under authority of State law; or
          ``(2) compensate private counsel retained by such official at 
        a reasonable prevailing rate for any such charge or claim.
  ``(d) Prohibition on Limitation of Scope.--No court may define or 
limit the scope of the duties of an official of the Executive Office of 
the President.
  ``(e) Dismissal.--In any action subject to removal under paragraph 
(5) or (6) of section 1442(a), such case shall be dismissed unless 
rebutted by clear and convincing evidence establishing that the 
continued pendency of the State claim or charge would not in any way 
interfere, hinder, burden, or delay the execution of the duties of the 
President or Vice President.''.
  (b) Table of Sections.--The table of sections for such chapter is 
amended by adding at the end the following:

``1456. Official immunity.''.

  (c) Application.--The amendments made by this section shall apply to 
civil actions or criminal prosecutions pending on the date of enactment 
of this Act or commenced on or after such date.

                          Purpose and Summary

    H.R. 1789, the Promptly Ending Political Prosecutions and 
Executive Retaliation Act of 2025, introduced by Representative 
Russell Fry (R-SC), would give current and former Presidents 
and Vice Presidents, current and former officers of the United 
States, and current and former officers of any agency the 
ability to remove a civil or criminal case against them in a 
state court to a federal district court under 28 U.S.C. 
Sec. 1442(a). In addition, the bill provides greater procedural 
protections for when a federal official's case is removed 
pursuant to Sec. 1442(a).
    The bill also adds a new section to Title 28, United States 
Code, which would codify the immunity recognized by the U.S. 
Supreme Court in Trump v. United States for official acts 
carried out by a federal official during their federal duties. 
The section also prohibits the court, during its immunity 
determination, from examining official acts that are not the 
subject of the charge or claim brought in state court. Finally, 
the section further permits the Attorney General to provide 
representation to any individual whose case is subject to 
removal based upon their current or past federal government 
service, prohibits state courts from defining the duties of 
federal officers, and requires that a federal court dismiss a 
pending case if it would interfere with the execution of the 
President's or Vice President's official duties.

                Background and Need for the Legislation

    During the 118th Congress, the Committee investigated the 
Biden-Harris Justice Department's two-tiered justice system--
one for the politically favored and one for the 
Administration's political opponents--that extended to Democrat 
local and state offices. Rather than debate political opponents 
on substance, the Democrats' strategy to win the 2024 election 
was through the use of partisan lawfare tactics.\1\ The 
criminal indictments brought by left-wing, activist state 
prosecutors showed that this two-tiered system of justice was 
not just limited to the federal government. Prior to the 2024 
election, President Donald Trump was criminally indicted an 
unprecedented four times after he announced his run for 
President, and he faced other civil lawsuits that exposed him 
to hundreds of millions of dollars in liability. Several of 
these cases came before hostile judges and biased jury pools.
---------------------------------------------------------------------------
    \1\Lawfare has been defined as ``the strategic use of legal 
proceedings to intimidate or hinder an opponent.'' William Holmes, 
`Lawfare' among six new words added to Collins Dictionary, Legal Cheek 
(Nov. 1, 2022).
---------------------------------------------------------------------------
    Current law does not adequately protect federal officials, 
especially current and former Presidents and Vice Presidents, 
from these rogue state and local attorneys who bring 
unwarranted charges against their political opponents. Under 
current law, the ability to remove civil or criminal cases from 
a state court to a federal court is limited to current federal 
agency officials, and legislative and judicial officers.\2\ 
This legislation would ensure that all the nation's leaders are 
protected from partisan lawfare tactics by giving current and 
former Presidents, Vice Presidents, and federal officials the 
ability to remove cases against them.
---------------------------------------------------------------------------
    \2\28 U.S.C. Sec. 1442(a).
---------------------------------------------------------------------------
    The legislation would further extend protections for the 
nation's leaders by codifying the immunity recognized by the 
U.S. Supreme Court. In Trump v. United States the Supreme Court 
held that ``the nature of Presidential power entitles a former 
President to absolute immunity from criminal prosecution for 
actions within his conclusive and preclusive constitutional 
authority.''\3\ In Nixon v. Fitzgerald, the Supreme Court also 
held that ``the threat of future civil liability for official 
acts--including years after the President left office--could 
deter the President from the `bold and unhesitating action' 
required for his official responsibilities.''\4\ The Supreme 
Court has repeatedly held that ``there exists the greatest 
public interest in providing'' the President with ``the maximum 
ability to deal fearlessly and impartially with the duties of 
his office.''\5\ In essence, knowing that official acts could 
lead to future liability ``could distract [a President] from 
his public duties to the detriment of not only the President 
and his office but also the Nation.''\6\ These ``same concerns 
apply to the threat of criminal prosecution'' and are in fact 
``dramatically enhanced.''\7\
---------------------------------------------------------------------------
    \3\Trump v. United States, 603 U.S. 593, 1 (2024).
    \4\Id. at 26 (citing Nixon v. Fitzgerald, 457 U.S. 731, 745 
(1982)).
    \5\Id.
    \6\Id.
    \7\Id. at 27.
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District Attorneys' Politicized Investigations Against President Trump

    The rogue state and local prosecutors at the front lines in 
the lawfare against President Trump made their intentions clear 
from the start. When campaigning for office, New York County 
District Attorney (DA) Alvin Bragg ran on a platform of going 
after Donald Trump. Bragg would often boast about how many 
times he had sued President Trump when working in the New York 
Attorney General's Office, stating, ``It is a fact that I have 
sued Trump more than a hundred times . . . I can't change that 
fact, nor would I.''\8\ Bragg ran on being the candidate most 
able to continue and initiate lawsuits against President 
Trump.\9\ In addition, in Georgia, Fulton County DA Fani 
Willis--just four days before indicting President Trump--
launched a new fundraising website highlighting her 
investigation.\10\
---------------------------------------------------------------------------
    \8\Jonah E. Bromwich et al., 2 Leading Manhattan D.A. Candidates 
Face the Trump Question, N.Y. Times (Jun. 2, 2021) (internal quotations 
omitted).
    \9\Id.
    \10\Tim Darnell, `We have an announcement'--Fulton DA Willis 
launches fundraising website, Atlanta News First (Aug. 10, 2023); Meet 
Fani Willis, FaniForDA.Com (last visited Aug. 18, 2023) (highlighting 
an article from the New York Times with the headline ``In Atlanta, a 
Local Prosecutor Takes on Murder, Street Gangs and a President'').
---------------------------------------------------------------------------
    The 2024 lawfare strategy was a microcosm of the treatment 
President Trump and other Republicans have faced for years. 
Despite their failure to prevent President Trump from winning 
the 2024 Presidential Election, Democrats seem intent to 
continue to use lawfare to undermine other legitimate 
candidates and weaponize the justice system. This rise in state 
litigation against federal officials, particularly those who 
have served in conservative administrations or have taken 
actions that are unpopular with radical left-wing state 
governments, disrupts the efficient operation of the federal 
government and may lead to officials not fulfilling the roles 
and responsibilities of their office out of fear of criminal 
prosecution, civil suits, and harassment.

Fulton County District Attorney Fani Willis's Politicized Investigation

    On August 14, 2023, Fulton County DA Fani Willis brought a 
41-count indictment against 19 defendants--including President 
Trump, his attorneys, former White House Chief of Staff Mark 
Meadows, and a former DOJ official--related to the 2020 
election for President of the United States.\11\ The 
politicized nature of this prosecution is hard to ignore. Just 
four days before the indictment, Willis launched a new campaign 
fundraising website highlighting her investigation into 
President Trump.\12\ Willis's investigation into President 
Trump was first reported in February 2021;\13\ however, she did 
not bring charges until two and a half years later--after 
President Trump had announced his candidacy for the 2024 
presidential election.\14\ Willis requested that the trial 
begin on March 4, 2024, the day before Super Tuesday and eight 
days before the Georgia presidential primary.\15\
---------------------------------------------------------------------------
    \11\Indictment, Georgia v. Donald John Trump et al., No. 23SC188947 
(Aug. 14, 2023, Fulton Co. Sup. Ct.).
    \12\Tim Darnell, `We have an announcement'--Fulton DA Willis 
launches fundraising website, Atlanta News First (Aug. 10, 2023); Meet 
Fani Willis, FaniForDA.Com (last visited Aug. 18, 2023) (highlighting 
an article from the New York Times with the headline ``In Atlanta, a 
Local Prosecutor Takes on Murder, Street Gangs and a President'').
    \13\Graham Kates, Timeline: The Trump investigation in Fulton 
County, Georgia, CBS News (Aug. 15, 2023).
    \14\Steve Holland and Andy Sullivan, Trump launches 2024 U.S. 
presidential run, getting jump on rivals, Reuters (Nov. 16, 2022).
    \15\Olivia Rubin, Willis proposes March 4 start date for Trump's 
Georgia election interference trial, CBS News (Aug. 16, 2023).
---------------------------------------------------------------------------
    Central to Willis's case was a radical interpretation of 
Georgia's Racketeer Influenced and Corrupt Organization (RICO) 
law, which is intended to be used to prosecute criminal 
enterprises that infiltrate legitimate businesses and use 
interstate commerce.\16\ In the indictment, Willis alleged that 
the 19 individuals, 30 unindicted co-conspirators, and others 
involved were part of a ``criminal enterprise'' that engaged in 
unlawful activity that can be prosecuted under RICO.\17\ 
However, the actions that Willis alleged to have been committed 
in furtherance of this purported criminal enterprise include 
several official and ordinary actions of senior federal 
officials, including: (1) the then-White House Chief of Staff 
asking a Member of Congress for the phone number of the Speaker 
of the Pennsylvania House of Representatives; (2) the President 
tweeting that hearings in the Georgia legislature were being 
aired on a news channel and commenting on those hearings; and 
(3) numerous acts taking place in other states not involving 
the conduct of the 2020 election in Georgia or the counting of 
the votes cast in Georgia.\18\
---------------------------------------------------------------------------
    \16\Jabari Simama, The Misuse of a Powerful Prosecutorial Weapon, 
Governing (Feb. 20, 2024).
    \17\Indictment, Georgia v. Donald John Trump et al., No. 23SC188947 
(Aug. 14, 2023, Fulton Co. Sup. Ct.).
    \18\See id.
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            Willis's Coordination With Special Counsel Smith, the 
                    Biden-Harris White House, and the Partisan 
                    Democrat-led House January 6th Committee
    During her investigation, Willis and her office coordinated 
with openly partisan actors. Prior to her decision to indict 
President Trump, Willis's office coordinated with Special 
Counsel Jack Smith while she was investigating President 
Trump,\19\ ``interview[ing] many of the same witnesses and 
review[ing] much of the same evidence.''\20\ Nathan Wade, an 
outside attorney who Willis hired to lead the case, also met 
with the Biden-Harris White House on multiple occasions over a 
period of several months prior to the indictment.\21\ Perhaps 
most revealing was Willis's decision to ``quietly me[e]t'' with 
the partisan January 6th Committee before she indicted 
President Trump.\22\ The January 6th Committee provided 
Willis's prosecution a ``boost'' as she prepared to convene a 
special grand jury and even ``helped prosecutors prepare for 
interviews with key witnesses.''\23\ During these meetings, the 
January 6th Committee provided Willis with records that it 
withheld from Members of Congress and law enforcement 
entities.\24\ The degree of improper coordination among 
politicized actors--including Jack Smith, the Biden-Harris 
White House, and the January 6th Committee--emphasizes the 
extent to which Willis's prosecution is politically motivated.
---------------------------------------------------------------------------
    \19\Josh Gerstein, Prosecutor in Trump documents case has history 
pursuing prominent politicians, Politico (June 13, 2023).
    \20\Glenn Thrush & Danny Hakim, Georgia Case Lays the Ground for 
Parallel Prosecutions of Trump, N.Y. Times (Aug. 15, 2023).
    \21\Tanner Hallerman and David Wickert, Trump seeks info on Fulton 
prosecutor's meetings with feds, Atlanta J. Const. (Jan. 10, 2024).
    \22\Betsy Woodruff, et al., Jan. 6 committee helped guide early 
days of Georgia Trump probe, Politico (Jan. 10, 2024).
    \23\Id.
    \24\Id.
---------------------------------------------------------------------------
            Meadows's Attempt To Remove Case Into Federal Court
    On August 15, 2023, Meadows filed a Notice of Removal with 
the U.S. District Court for the Northern District of Georgia in 
an attempt to have Willis's charges against him removed from 
the Superior Court of Fulton County to federal court.\25\ In 
his Notice, Meadows stated that he had the ``right to remove'' 
the case to federal court because the ``conduct giving rise to 
the charges in the indictment all occurred during his tenure 
and as part of his service as [White House] Chief of 
Staff.''\26\ Meadows also specifically argued that the federal 
removal statute, 28 U.S.C. Sec. 1442(a)(1), ``protect[s] the 
Federal Government from the interference with its operations 
that would ensue were a State able, for example, to arrest and 
bring to trial in a State court for an alleged offense against 
the law of the State, officers, and agents of the Federal 
Government acting within the scope of their authority.''\27\
---------------------------------------------------------------------------
    \25\Notice of Removal, Georgia v. Meadows, et al., No. 1:23-cv-
03621-SCJ (N.D. Ga. Aug. 15, 2023).
    \26\Id. at 1.
    \27\Id. at 1-2 (quoting Watson v. Philip Morris Companies, Inc., 
551 U.S. 142, 150 (2007)).
---------------------------------------------------------------------------
    However, on September 8, 2023, the federal court 
``decline[d] to assume jurisdiction over the State's criminal 
prosecution of Meadows'' and found ``insufficient evidence to 
establish that the gravamen, or a heavy majority of overt acts 
alleged against Meadows, relate[d] to his role as White House 
Chief of Staff.''\28\ The Court ultimately ruled that ``Meadows 
was not acting in his scope of executive branch duties during 
most of the Overt Acts alleged.''\29\ Both the U.S. Court of 
Appeals for the Eleventh Circuit and the Supreme Court upheld 
the lower court's ruling.\30\ However, in a statement to the 
Supreme Court, Meadows stated, ``[i]f former officers cannot 
remove at all, and if even a current chief of staff cannot 
remove a case arising out of acts taken in the White House in 
service of the president, then the floodgates are open, and 
`nightmare scenarios' will not take long to materialize.''\31\
---------------------------------------------------------------------------
    \28\Order at 42, Georgia v. Meadows, et al., No. 1:23-CV-03621-SCJ 
(N.D. Ga. Sept. 8, 2023).
    \29\Id. at 43.
    \30\See Devan Cole, Appeals court rejects Mark Meadows' attempt to 
move Georgia election subversion case to federal court, CNN (Dec. 18, 
2023); see Olivia Rubin, Supreme Court rejects Mark Meadows' request to 
move Georgia election interference case into federal court, ABC News 
(Nov. 12, 2024).
    \31\Megan Butler, Trump's former chief of staff loses final bid for 
federal forum on Georgia election charges, Courthouse News Service 
(Nov. 12, 2024).
---------------------------------------------------------------------------
            Current Status of Willis's Politicized Prosecution
    Willis's prosecution of President Trump and his co-
defendants were hindered by allegations that she had a romantic 
relationship with Wade, who allegedly used the money he 
received from the Fulton County DA's office to pay for lavish 
vacations with Willis.\32\ On January 8, 2024, one of President 
Trump's co-defendants filed a motion to dismiss the indictment 
and disqualify Willis, her office, and Wade from further 
prosecuting the case due to the conflict arising from Willis's 
and Wade's romantic relationship in which they both were 
alleged to have created a personal financial interest in the 
case.\33\ On March 15, 2024, after conducting an evidentiary 
hearing and finding that Willis's and Wade's relationship 
created an ``odor of mendacity'' around the case, the trial 
court gave Willis and her office an option: either Wade resign 
his position with the office or the office recuse itself from 
the prosecution.\34\ Wade resigned the same day.\35\ Both 
Willis's office and the defendants in the case appealed the 
trial court's ruling to the Georgia Court of Appeals.\36\
---------------------------------------------------------------------------
    \32\Marjorie Hernandez, Inside Trump prosecutor Nathan Wade's 
$6,000 spending spree on luxury cruises and Caribbean resorts, N.Y. 
Post (Jan. 23, 2024). According to Mr. Wade, who showed little concern 
for the conflict of interest created by his workplace romance, his 
relationship with Ms. Willis was as ``American as Apple Pie.'' Hanna 
Panreck, Nathan Wade speaks out on `workplace romance' with Fulton 
County DA Fani Willis: `American as apple pie', Fox News (May 6, 2024).
    \33\Order at 5, Trump, et al., v. Georgia, No. A24A1599 (Ga. App. 
Dec. 19, 2024). Notably, after Willis spoke publicly in a church 
service on Sunday, January 14, 2024, the other appellants also filed 
motions seeking dismissal and disqualification on the same grounds, as 
well as the additional ground of forensic misconduct in connection with 
the church speech and various other extrajudicial statements. Id.
    \34\Id. at 5, 13. However, the trial court ruled that ``dismissal 
of the indictment is not the appropriate remedy to adequately dissipate 
the financial cloud of impropriety and potential untruthfulness'' 
presented during the evidentiary hearing. Id. at 13.
    \35\Danny Halem, et al., Nathan Wade Resigns From Trump Case After 
Judge's Ruling, N.Y. Times (Mar. 18, 2024).
    \36\Id.
---------------------------------------------------------------------------
    Upon reviewing the trial court's evidentiary record, along 
with the parties' appellate briefings, on December 19, 2024, 
the Georgia Court of Appeals disqualified Willis from 
prosecuting President-elect Trump.\37\ The Georgia Court of 
Appeals held that the trial court ``erred by failing to 
disqualify DA Willis and her office[]'' because the trial 
court's order ``did nothing to address the appearance of 
impropriety that existed at times when DA Willis was exercising 
her broad pretrial discretion about who to prosecute and what 
charges to bring.''\38\ On January 8, 2025, Willis's office 
petitioned the Georgia Supreme Court to reverse the decision of 
the Court of Appeals.\39\ This appeal remains pending at the 
time of this report, and, accordingly, the charges against 
President Trump and Meadows remain pending.\40\ In the event 
that the Georgia Supreme Court upholds the appellate court's 
disqualification of Willis and her office, the case will be 
``referred to the Georgia Prosecuting Attorneys' Council for 
reassignment[]'' to a new Georgia district attorney's office, 
who would decide the fate of the prosecution.\41\
---------------------------------------------------------------------------
    \37\Order at 5, Trump, et al., v. Georgia, No. A24A1599 (Ga. App. 
Dec. 19, 2024).
    \38\Id. at 16-17.
    \39\Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision 
Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025).
    \40\See id.
    \41\Sam Gringlas, Georgia county blocks Fulton DA Willis from Trump 
election interference case, NPR (Dec. 19, 2024) (``If the Georgia 
Supreme Court ultimately takes up the case and upholds the decision, it 
would fall to the director of the Prosecuting Attorneys' Council of 
Georgia to appoint a new prosecutor. That prosecutor would have the 
discretion to decide whether to continue the case.''); see Heritage 
Experts: Fulton County District Attorney's Office Should Recuse Itself 
from Trump Case, Heritage Found. (Mar. 15, 2024).
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Manhattan District Attorney Alvin Bragg's Politicized Investigation

    On April 4, 2023, New York County District Attorney Alvin 
Bragg indicted President Trump with 34 counts of falsifying 
business records to an ambiguous, unknown federal crime to 
aggravate the charges to felonies.\42\ This indictment was an 
``unprecedented abuse of prosecutorial authority.''\43\ 
Falsifying business records is ordinarily a misdemeanor subject 
to a two-year statute of limitations,\44\ which would have 
expired long ago. However, Bragg used a novel and untested 
legal theory--previously declined by federal prosecutors--to 
bootstrap the misdemeanor allegations as a felony by alleging 
that records were falsified to conceal a second crime.\45\ The 
facts surrounding Bragg's indictment of President Trump have 
``been known for years.''\46\ Michael Cohen, President Trump's 
disgraced former lawyer and Bragg's star trial witness, pleaded 
guilty over five years ago to charges based on the same facts 
at issue in the indictment.\47\ By July 2019, however, federal 
prosecutors determined that no additional people would be 
charged alongside Cohen.\48\
---------------------------------------------------------------------------
    \42\Press Release, District Attorney Bragg Announces 34-Count 
Felony Indictment of Former President Donald J. Trump, N.Y. Cnty. Dist. 
Att'y Off. (Apr. 4, 2023).
    \43\See Letter from Jim Jordan, Chairman, H. Comm. on the Judiciary 
et al. to Alvin L. Bragg, Dist. Att'y, N.Y. Cnty. (Mar. 20, 2023).
    \44\Id.
    \45\See id; Ben Protess, et al., In Trump Case, Bragg Pursues a 
Common Charge With a Rarely Used Strategy, N.Y. Times (May 7, 2023).
    \46\Mark Berman et al., The prosecutor, the ex-president and the 
`zombie' case that came back to life, Wash. Post (Mar. 17, 2023).
    \47\Shawna Chen, Timeline: The probe into Trump's alleged hush 
money payments to Stormy Daniels, Axios (Mar. 18, 2023).
    \48\Id.; see also Berman, supra note 38.
---------------------------------------------------------------------------
    Although both the U.S. Attorney's Office for the Southern 
District of New York and the New York County District 
Attorney's Office (DANY) previously declined to further 
investigate the alleged hush money payments to Stephanie 
Clifford (also known as Stormy Daniels),\49\ Bragg opted to 
revive the DANY's investigation at a politically opportune 
moment--shortly after President Trump announced his White House 
run.\50\ The timing and basis for the DANY's prosecution of 
President Trump provide a clear inference that Bragg was 
motivated by political calculations. The facts had not changed 
since 2018 and no new witnesses emerged between then and the 
date on which Bragg filed the indictment.\51\ The only 
intervening factor, it appears, was President Trump's 
announcement that he would be a candidate for President in 
2024.\52\ After a 20-day trial, a Manhattan jury found 
President Trump guilty on May 31, 2024.\53\
---------------------------------------------------------------------------
    \49\Pomerantz at 39, 61; see also Berman, supra note 38.
    \50\Pomerantz at 46; see also William K. Rashbaum et al., Manhattan 
prosecutors begin presenting Trump case to grand jury, N.Y. Times (Jan. 
30, 2023).
    \51\Berman, supra note 38.
    \52\Max Greenwood, Trump announces 2024 run for president, The Hill 
(Nov. 15, 2022).
    \53\See Aaron Katersky & Peter Charlambous, Timeline: Manhattan 
DA's Stormy Daniels hush money case against Donald Trump, ABC News 
(Jan. 10, 2025).
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            Bragg's Pursuit To Prosecute President Trump
    Throughout his campaign for district attorney, Alvin Bragg 
made President Trump a focal point of his campaign.\54\ On 
March 17, 2021, Bragg indicated that, if elected as district 
attorney, he ``will hold [Trump] accountable . . . .''\55\ Just 
a few days later, on March 23, 2021, he again boasted that he 
had ``sued the Trump administration over 100 times . . . 
.''\56\ In June 2021, Bragg doubled down, stating, ``It is a 
fact that I have sued Trump more than a hundred times. I can't 
change that fact, nor would I. That was important work. That's 
separate from anything that the D.A.'s office may be looking at 
now.''\57\ In other words, Bragg assumed office with seemingly 
one fundamental goal: to prosecute President Trump.
---------------------------------------------------------------------------
    \54\See, e.g., Maria Ramirez Uribe & Loreben Tuquero, Here's what 
Manhattan District Attorney Alvin Bragg said about Donald Trump during 
his DA campaign, Politifact (Apr. 12, 2023); Katelyn Caralle, Meet the 
Dems competing to prosecute Trump: Manhattan DA candidate BRAGGED about 
suing Donald `more than 100 times'--while his opponent interviewed to 
be federal judge but didn't get it, Daily Mail (June 2, 2021).
    \55\Id.
    \56\Emily Ngo, Why the Manhattan DA Candidates Say They're Ready to 
Take on the Trump Investigation, Spectrum News NY 1 (Mar. 23, 2023).
    \57\Jonah E. Bromwich et al., 2 Leading Manhattan D.A. Candidates 
Face the Trump Question, N.Y. Times (June 2, 2021).
---------------------------------------------------------------------------
    Despite campaigning heavily on his goal of prosecuting 
President Trump, after assuming office on January 1, 2022, 
Bragg realized the case against President Trump was thin.\58\ 
On January 8, 2022, former Special Assistant District Attorney 
Mark Pomerantz met individually with Bragg.\59\ During the one-
on-one, Pomerantz told Bragg that his case against President 
Trump ``was ready to be charged.''\60\ On January 11, 2022, 
Pomerantz and his colleague Carey Dunne gave a presentation on 
former President Trump's financial statements to Bragg and his 
team.\61\ At this meeting, Bragg's team expressed 
``considerable `angst''' about using Cohen as a witness and 
sought to pivot away from Pomerantz's suggested fraud 
charges.\62\
---------------------------------------------------------------------------
    \58\Michael Gold & Jonah E. Bromwich, Who Is Alvin Bragg, the D.A. 
Leading the Prosecution of Trump, N.Y. Times (Apr. 13, 2023).
    \59\Pomerantz at 205-07.
    \60\Id.
    \61\Id. at 207-08.
    \62\Id. at 208-209.
---------------------------------------------------------------------------
    On January 24, 2022, according to Pomerantz, an 
investigative team meeting ``quickly degenerated into a 
whirlwind of negativity'' because other DANY officials rightly 
questioned the credibility of Pomerantz's main witness, Michael 
Cohen.\63\ Two days later, Pomerantz and Dunne agreed that both 
would resign if Bragg did not move forward with an indictment 
and exchanged resignation letters for the other to review.\64\
---------------------------------------------------------------------------
    \63\Id. at 212 (``As I started to detain Cohen's potential 
testimony against Trump, Susan Hoffinger brought her phone out to play 
a recording of one of Cohen's recent media appearances, in which he had 
taken credit as the person who had first spoken about the false 
financial statements and had crowed about his importance as a witness 
in the case. This was exactly opposite to the point I was making at the 
meeting . . . .''); Id. at 213 (``Although the new team knew nothing 
about the underlying facts, and nothing about how the Weisselberg case 
had been put together, they had read the defense motion papers 
attributing critical importance to Cohen, dumping all over him, and 
claiming that he had tainted the prosecution.'').
    \64\Id. at 217.
---------------------------------------------------------------------------
    Throughout the first few weeks of February 2022, Pomerantz 
and Dunne held several conversations with Bragg and his team to 
explain their multi-faceted investigation into President 
Trump.\65\ According to Pomerantz, the case against President 
Trump based upon the Clifford payment facts--familiarly known 
as the ``zombie'' case--had multiple pitfalls, and 
notwithstanding possible ``work-arounds,'' Pomerantz wrote that 
none were appealing.\66\ Further, his DANY colleagues were 
``dubious about whether Trump had been `extorted' in the first 
place.''\67\ Bragg therefore halted the investigation into 
President Trump despite ``fac[ing] incredible political 
pressure from his Democratic base to indict [President] 
Trump.''\68\
---------------------------------------------------------------------------
    \65\Id. at 221-26, 228.
    \66\Id. at 61.
    \67\Id.
    \68\Jeff Coltin, Alvin Bragg's about to become the most famous 
prosecutor in America (but no questions, please), Politico (Apr. 13, 
2024); see also Jeff Coltin, This reluctant prosecutor just made Donald 
Trump a felon, Politico (June 1, 2024) (``Bragg was also criticized by 
many Democrats for not quickly bringing a criminal conspiracy case 
against Trump that assistants in the office had been building.'').
---------------------------------------------------------------------------
    As a result, Pomerantz and Dunne dramatically resigned in 
protest ``while Bragg's liberal supporters grew restless with 
the lack of an indictment for more than a year.''\69\ A copy of 
Pomerantz's resignation letter was leaked to the New York 
Times, which published his scathing assessment of Bragg's 
failures.\70\ Amid the fallout from the investigation into 
President Trump, Bragg issued an ``unusual'' public statement 
about the DANY's investigation into President Trump, 
``emphasizing that the investigation into Trump and his 
business was far from over.''\71\
---------------------------------------------------------------------------
    \69\Jeff Coltin, Alvin Bragg's about to become the most famous 
prosecutor in America (but no questions, please), Politico (Apr. 13, 
2024).
    \70\Read the Full Text of Mark Pomerantz's Resignation Letter, N.Y. 
Times (Mar. 23, 2022).
    \71\Mark Berman et al., The prosecutor, the ex-president and the 
`zombie' case that came back to life, Wash. Post (Mar. 17, 2023).
---------------------------------------------------------------------------
    After losing his two partisan prosecutors, Bragg retooled 
his office with more activists. In December 2022, Bragg hired 
Matthew Colangelo, who was at one point the third highest-
ranking official at the Biden-Harris Justice Department.\72\ 
Colangelo previously held senior positions in the New York 
Attorney General's Office and has a ``history of taking on 
Donald J. Trump and his family business.''\73\ Colangelo led 
``dozens of lawsuits against the [T]rump administration'' 
during his time at the New York Attorney General's Office.\74\
---------------------------------------------------------------------------
    \72\Jonah E. Bromwich, Manhattan D.A. hires ex-Justice official to 
help lead Trump inquiry, N.Y. Times (Dec. 5, 2022).
    \73\Id.
    \74\Id.
---------------------------------------------------------------------------
            President Trump's Trial Was Plagued With Serious Legal and 
                    Constitutional Deficiencies
    On April 4, 2023, Bragg succumbed to the left-wing 
political pressure and filed a 34-count criminal indictment 
against President Trump for falsifying New York business 
records, allegedly ``to conceal damaging information and 
unlawful activity from American voters before and after the 
2016 election.''\75\ The indictment took ``a single 
transaction--Trump's reimbursement to Michael Cohen of the 
$130,000 Cohen paid to [Stephanie Clifford] to stay mum about 
an alleged 2006 fling [pursuant to an agreed-upon non-
disclosure agreement (NDA)]--and ludicrously slic[ed] it into 
34 transactions, each of which [it] brands as felony 
falsification of business records.''\76\
---------------------------------------------------------------------------
    \75\Press Release, N.Y. Cnty. Dist. Atty's Office, District 
Attorney Bragg Announces 34-County Felony Indictment of Former 
President Donald J. Trump (Apr. 4, 2023).
    \76\Andrew C. McCarthy, Bragg's case against Trump is utterly 
incoherent, N.Y. Post (Apr. 5, 2023).
---------------------------------------------------------------------------
    Legal experts explained that none of this alleged conduct 
amounted to a provable felony offense. First, even if the 
alleged bookkeeping irregularities ``amount[ed] to fraud crimes 
. . . the transactions in question could not possibly have had 
the slightest impact on the 2016 election. They didn't occur 
until months later--specifically, from February 14 through 
December 5, 2017.''\77\ Second, ``even if Bragg had 
jurisdiction to enforce federal campaign finance law'' and 
``even if Bragg were correct that the . . . payments were in-
kind campaign contributions that had to be disclosed,'' any 
disclosure would have been due ``several months into 2017. 
Again, there could not conceivably have been any impact on the 
2016 election.''\78\
---------------------------------------------------------------------------
    \77\Id.
    \78\Id.
---------------------------------------------------------------------------
    Despite these legal infirmities, Bragg ultimately tried 
President Trump on these charges, and, on May 30, 2024, a 
Manhattan jury found him guilty on all 34 counts.\79\ President 
Trump promised to appeal, stating, ``We will fight for our 
constitution. This is far from over.''\80\ Legal experts agreed 
that President Trump's appeal of his conviction was on solid 
legal grounds for several reasons.
---------------------------------------------------------------------------
    \79\James Lynch, Trump Found Guilty on All Counts in Hush-Money 
Trial, Nat'l Rev. (May 30, 2022).
    \80\Id. (internal quotation marks omitted).
---------------------------------------------------------------------------
    First, the jury instructions that New York District Judge 
Juan Merchan read to the jurors were comprised of 55-pages of 
confusing and seemingly unlawful charges.\81\ Specifically, 
Judge Merchan charged the jury that they had to agree 
unanimously on whether to convict President Trump on each of 
the 34 counts of falsifying business records with the intent to 
conceal damaging information before the 2016 election.\82\ This 
required them, unanimously, to determine that President Trump 
used ``unlawful means'' to conceal this information.\83\ Judge 
Merchan, however, instructed the jurors that they ``did not 
have to agree on a singular unlawful act'' to convict.\84\ He 
instructed ``that they would have to find only that Mr. Trump 
committed bookkeeping infractions to conceal [1] a campaign 
finance violation, [2] tax law infraction or [3] falsification 
of business records,'' but they ``didn't have to agree on the 
underlying crime to find the former president guilty.''\85\
---------------------------------------------------------------------------
    \81\See Aysha Bagchi, Read the jury instructions in Donald Trump's 
New York criminal hush money trial, USA Today (May 20, 2024).
    \82\Erica Orden & Ben Feuerhead, Looming over Trump's conviction: 
Reversal by the `13th juror,' Politico (June 2, 2024).
    \83\Id.
    \84\Id.
    \85\Alex Swoyer, Here are Trump's top three arguments for appeal 
after guilty verdict in hush money trial, Wash. Exam. (May 30, 2024).
---------------------------------------------------------------------------
    One New York criminal law expert reasoned that, by offering 
``three different theories as to how the false records could 
have violated state election law, limit[ing] instruction on 
what some of those theories required, and the fact that jurors 
were not required to agree on which had been proven,'' Judge 
Merchan created ``a real issue for the appeal.''\86\ As a 
matter of law, Judge Merchan should have instructed the jurors 
``that they had to find at least one of these objective crimes 
and they had to be unanimous on that finding in order to 
convict Trump.''\87\
---------------------------------------------------------------------------
    \86\Erica Orden & Ben Feuerhead, Looming over Trump's conviction: 
Reversal by the `13th juror,' Politico (June 2, 2024) (internal 
quotation marks omitted).
    \87\Andrew C. McCarthy, The `Other Crime' in the Trump Trial: 
Conflating Ends and Means, Nat'l Rev. (June 3, 2024).
---------------------------------------------------------------------------
    Second, Judge Merchan allowed Bragg ``to spread before the 
jury in his Manhattan courtroom evidence that [was] blatantly 
inadmissible against'' President Trump.\88\ Bragg intended ``to 
use Cohen's guilty plea to establish that Trump was complicit 
in crimes because of the NDA payments.''\89\ Judge Merchan held 
that neither Cohen's guilty plea nor David Pecker's, former CEO 
of American Media, non-prosecution agreement were admissible 
because ``evidence of another party's guilty plea is not 
admissible to prove the defendant's guilt.''\90\ Nevertheless, 
Judge Merchan ``simultaneously ruled that prosecutors could 
elicit testimony about Cohen's guilty pleas on the rationale 
that they are relevant to his credibility as a witness,'' which 
he permitted over President Trump's objection.\91\ As a result, 
the jury heard testimony about:
---------------------------------------------------------------------------
    \88\Andrew McCarthy, Undercover Prosecutor Merchan Helps Bragg 
Lawlessly Stress Cohen's Guilty Plea, Nat'l Rev. (May 25, 2024); see 
People v. Davis, 43 N.Y.2d 17, 27, 371 N.E.2d 456 (1977) (holding that 
relevant evidence is inadmissible if ``its probative value is 
outweighed by the danger that its admission would prolong the trial to 
an unreasonable extent without any corresponding advantage; or would 
confuse the main issue and mislead the jury; or unfairly surprise a 
party; or create substantial danger of undue prejudice to one of the 
parties'').
    \89\Andrew C. McCarthy, How Judge Merchan Is Orchestrating Trump's 
Conviction, Nat'l Rev. (Apr. 29, 2024).
    \90\United States v. Werne, 939 F.2d 108, 113 (3rd Cir. 1991). See 
also People v. Blades, 93 N.Y.2d 166, 175-76 (1999) (cautioning that 
``rubrics must not be extended and applied as a blueprint for 
generalized admission of guilty plea colloquies into evidence, in lieu 
of live, confronted, cross-examinable trial testimony'').
    \91\McCarthy, supra note 80.

          Michael Cohen's guilty pleas to two Federal Election 
        Campaign Act (FECA) crimes, which he claimed were 
        established by payments to [Stephanie Clifford] and 
        Karen McDougal for non-disclosure agreements (NDAs); 
        and David Pecker's non-prosecution agreement with the 
        Justice Department, which he executed out of fear that 
        he'd be indicted over the McDougal NDA (he wasn't, 
        although his former company, AMI, agreed to pay the 
        Federal Election Commission a fine--a disposition that 
        allowed AMI to get out from under the federal 
        government's investigation so it could sell the 
        National Enquirer.)\92\
---------------------------------------------------------------------------
    \92\Andrew McCarthy, How Merchan Enabled Prosecutors' Effort to 
Convict Trump Based on Improper Evidence, Nat'l Rev. (May 26, 2024).

    Although inadmissible, this was the ``evidence'' that 
President Trump violated campaign laws--if Cohen pleaded guilty 
to violating FECA, and Pecker was concerned that he might be 
charged with violating FECA, then President Trump must have 
violated FECA when he allegedly paid off Clifford and 
McDougal.\93\ Judge Merchan compounded this reversible error by 
refusing to allow President Trump's defense to call former 
Federal Election Commission (FEC) Commissioner Bradley Smith as 
a witness to testify that none of President Trump's alleged 
conduct violated FECA.\94\
---------------------------------------------------------------------------
    \93\McCarthy, supra note 80.
    \94\Id.
---------------------------------------------------------------------------
    Third, Judge Merchan unfairly prejudiced the jury against 
President Trump by permitting Clifford to testify about an 
alleged past encounter with President Trump because it had no 
relevance to the falsified business recordkeeping charges at 
issue in the trial.\95\ This showing of unfair prejudice would 
be sufficient for the appeals court to vacate the guilty 
verdict and order a new trial.\96\
---------------------------------------------------------------------------
    \95\Swoyer, supra note 76.
    \96\People v. Weinstein, No. 24, 2024 WL 1773181, at *1 (Apr. 25, 
2024) (revering guilty verdict and ordering new trial where the 
defendant ``was judged, not on the conduct for which he was indicted, 
but on irrelevant, prejudicial, and untested allegations of prior bad 
acts'').
---------------------------------------------------------------------------
    Finally, just before the trial, the judge granted the 
prosecutors' request for an unconstitutional gag order on 
President Trump. On February 22, 2024, Bragg's office filed a 
motion seeking to restrict President Trump's ``extrajudicial 
statements . . . for the duration of the trial'' following 
several public comments made by President Trump regarding his 
pending trial in New York.\97\ President Trump argued that as 
the ``presumptive Republican nominee and leading candidate in 
the 2024 election'' he should have been able to ``criticize 
these public figures'' and respond to their attacks.\98\ Judge 
Merchan found that President Trump's statements ``went far 
beyond defending himself against `attacks' by `public 
figures.'''\99\
---------------------------------------------------------------------------
    \97\Decision and Order, People v. Donald J. Trump, No. 71543-34 at 
1 (N.Y. Co. Mar. 26, 2024).
    \98\Id. at 2.
    \99\Id.
---------------------------------------------------------------------------
    On March 26, 2024, Judge Merchan prohibited President Trump 
from making any public statements regarding ``witnesses, 
prosecutors, jurors and court staff.''\100\ The gag order did 
not restrict President Trump's comments about Bragg or Judge 
Merchan.\101\ On April 1, 2024, Judge Merchan extended the gag 
order to prohibit comments made by President Trump about the 
District Attorney's or Judge's family members (Judge Merchan's 
daughter is a Democrat political operative).\102\ If President 
Trump violated the gag order, the court would have been able to 
impose fines or ``in extraordinary circumstances'' jail 
time.\103\
---------------------------------------------------------------------------
    \100\Jesse McKinley, et al., Gag Order Against Trump Is Expanded to 
Bar Attacks on Judge's Family, N.Y. Times (Apr. 1, 2024).
    \101\Id.
    \102\Id.
    \103\Id.
---------------------------------------------------------------------------
    President Trump's legal team argued that the amended gag 
order was unconstitutional because it prohibited him from 
engaging in political speech.\104\ At the time, his campaign 
spokesman stated, ``The voters of America have a fundamental 
right to hear the uncensored voice of the leading candidate for 
the highest office in the land.''\105\ Professor Jonathan 
Turley stated Judge Merchan's gag orders ``raise[d] very 
serious free speech questions'' as the orders prohibited 
President Trump from criticizing ``central figures in this 
political campaign'' such as Michael Cohen, Stephanie Clifford, 
and Matthew Colangelo.\106\ Judge Merchan fined President Trump 
roughly $10,000 for posts on Truth Social and his campaign 
website and had threatened President Trump with jail time 
during the trial for allegedly violating the gag order.\107\
---------------------------------------------------------------------------
    \104\Id.
    \105\Id.
    \106\Prof. Jonathan Turley, Res Ipsa Loquitur, The Gag and the 
Goad: Trump Should Appeal Latest Gag Order (Mar. 27, 2024).
    \107\Graham Kates and Katrina Kaufman, Trump held in contempt for 
violating gag order in ``hush money'' trial. Here's how much he owes., 
CBS News Apr. 30, 2024). See also Jeremy Herb et al., Judge finds 
Donald Trump in contempt for 10th time over gag order and threatens 
jail time, CNN (May 6, 2024).
---------------------------------------------------------------------------
            Judge Juan Merchan's Political Bias
    The judge who presided over President Trump's trial, Juan 
Merchan, and his family have close ties to the Democrat party. 
Not only did Judge Merchan's daughter, Loren Merchan, work on 
Vice President Kamala Harris's 2020 presidential campaign, but 
until December 2024, she served as the president and Chief 
Operating Officer of Authentic Campaigns, a ``Chicago-based 
progressive political consulting firm'' that worked with 
Democrat Party candidates, including President Biden and Vice 
President Kamala Harris.\108\ According to Judge Merchan, prior 
to the trial he obtained an opinion from New York's Advisory 
Committee on Judicial Ethics regarding his daughter's 
employment.\109\ The Advisory Committee reportedly stated: ``We 
see nothing in the inquiry to suggest that the outcome of the 
case could have any effect on the judge's relative, the 
relative's business or any of their interest.''\110\
---------------------------------------------------------------------------
    \108\Jon Levine & Rich Calder, Dem clients of daughter of NY judge 
in Trump hush-money trial raised $93M off the case, N.Y. Post (Mar. 30, 
2024); Priscilla DeGregory, NY judge denies Trump's bid for recusal in 
`hush money' case, says he's `certain' he can be impartial, N.Y. Post 
(Aug. 14, 2023).
    \109\Erica Orden, Judge overseeing Trump's hush money case won't 
recuse himself, Politico (Aug. 14, 2023).
    \110\Id.
---------------------------------------------------------------------------
    However, two of Authentic Campaigns' top clients--then-
Congressman Adam Schiff and the Senate Majority PAC--raised 
``at least $93 million in campaign donations'' while using 
President Trump's New York indictments in their solicitation 
emails.\111\ Notably, Congressman Schiff's campaign for U.S. 
Senate received ``$20 million in aid since he began soliciting 
donations off the presumptive GOP presidential front-runner's 
unprecedented 34-count indictment last April, according to 
Federal Election Commission records.''\112\ The Senate Majority 
PAC ``pocketed $73.6 million since it also began firing off 
fundraising emails following the ex-president's 
indictment.''\113\ In 2020, Judge Merchan himself made 
donations to Democrat causes--including to President Biden's 
campaign and a group called Stop Republicans.\114\ According to 
Judge Merchan, the Advisory Committee found that his donations 
were ``modest political contributions made more than two years 
ago [that] cannot reasonably create an impression of 
bias.''\115\ Despite these conflicts, Judge Merchan denied 
President Trump's recusal request in August 2023.\116\
---------------------------------------------------------------------------
    \111\Jon Levine & Rich Calder, Dem clients of daughter of NY judge 
in Trump hush-money trial raised $93M off the case, N.Y. Post (Mar. 30, 
2024).
    \112\Jon Levine & Rich Calder, Dem clients of daughter of NY judge 
in Trump hush-money trial raised $93M off the case, N.Y. Post (Mar. 30, 
2024).
    \113\Jon Levine & Rich Calder, Dem clients of daughter of NY judge 
in Trump hush-money trial raised $93M off the case, N.Y. Post (Mar. 30, 
2024).
    \114\William Rashbaum, et al., Ethics Panel Cautions Judge in Trump 
Trial Over Political Donations, N.Y. Times (May 17, 2024); Priscilla 
DeGregory, NY judge denies Trump's bid for recusal in `hush money' 
case, says he's `certain' he can be impartial, N.Y. Post (Aug. 14, 
2023); see also Victor Nava, Judge Juan Merchan, who is overseeing 
Trump case, donated to Biden campaign in 2020, N.Y. Post (Apr. 7, 
2023).
    \115\Michael R. Sisak, Judge in Donald Trump's hush-money case 
denies bias claim, won't step aside, Assoc. Press (Aug. 14, 2023).
    \116\Priscilla DeGregory, NY judge denies Trump's bid for recusal 
in `hush money' case, says he's `certain' he can be impartial, N.Y. 
Post (Aug. 14, 2023).
---------------------------------------------------------------------------
    Bragg's case against President Trump came to an end on 
January 10, 2025, when New York Judge Juan Merchan sentenced 
President Trump to an unconditional discharge,\117\ which 
``waives legal penalties for a crime but does not negate the 
conviction.''\118\ President Trump will not serve any jail 
time, serve any probation, or pay any fines.\119\
---------------------------------------------------------------------------
    \117\Kate Christobek, Trump Received an Unconditional Discharge. 
What Does That Mean?, N.Y. Times (Jan., 10, 2025).
    \118\Steph Whiteside, What is an unconditional discharge?, 
NewsNation, (Jan., 10, 2025).
    \119\Id.
---------------------------------------------------------------------------

Protecting Our Nation's Leaders

    A prosecutor's job is to do justice. However, in their 
political pursuit against President Trump, state and local 
prosecutors abused their power. Current law does not adequately 
protect current and former Presidents and Vice Presidents from 
politically motivated state and local prosecutions. H.R. 1789 
is designed to protect the nation's leaders from lawfare 
tactics used against them by state and local prosecutors. The 
bill provides an avenue for federal officials to have their 
cases moved to less biased federal courts. When considering 
removal, federal courts should exercise their jurisdiction to 
the fullest extent of their Article III authority. In addition, 
the bill extends protections to federal officials by codifying 
case law that already extends Supremacy Clause immunity to 
those acting within the bounds or their federal duties. 
Finally, the bill gives greater legal support from the Justice 
Department or government-funded private counsel to prevent 
state prosecutors from bankrupting federal officials.

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the following hearings were used to develop H.R. 1789: 
``Legislative Reforms to End Lawfare by State and Local 
Prosecutors'' a hearing held on March 4, 2025, before the 
Subcommittee on the Constitution and Limited Government of the 
Committee on the Judiciary. The Subcommittee heard testimony 
from the following witnesses:
           George J. Terwilliger, III, Former Deputy 
        Attorney General, U.S. Department of Justice; Counsel 
        to former Congressman and Chief of Staff Mark Meadows;
           Daniel Epstein, Vice President of America 
        First Legal; Professor of Law, St. Thomas University;
           Elizabeth Price Foley, Of Counsel at 
        BakerHostetler; Professor of Law, Florida International 
        University College of Law;
           Elizabeth Earle Beske, Professor of Law, 
        Washington College of Law.
    The hearing examined the use of lawfare tactics by the 
Biden-Harris Administration to weaponize the rule of law 
against political opponents. The hearing also highlighted 
legislative reforms to end politically motivated state and 
local prosecutions.

                        Committee Consideration

    On March 5, 2025, the Committee met in open session and 
ordered the bill, H.R. 1789, favorably reported with an 
amendment in the nature of a substitute, by a roll call vote of 
14-11, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following roll call votes occurred during the Committee's 
consideration of H.R. 1789:
          1. Vote on Amendment #1 to the H.R. 1789 ANS, offered 
        by Mr. Raskin--failed 11 ayes to 14 nays.
          2. Vote on Amendment #2 to the H.R. 1789 ANS, offered 
        by Mr. Nadler--failed 8 ayes to 11 nays.
          3. Vote on Amendment #3 to the H.R. 1789 ANS, offered 
        by Ms. Balint--failed 10 ayes to 10 nays
          4. Vote on favorably reporting H.R. 1789, as 
        amended--passed 14 ayes to 11 nays.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, are 
incorporated in the descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to the requirements of clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received a cost estimate for this bill from the 
Director of the Congressional Budget Office. The Committee has 
requested but not received from the Director of the 
Congressional Budget Office a statement as to whether this bill 
contains any new budget authority, spending authority, credit 
authority, or an increase or decrease in revenues or tax 
expenditures. The Chairman of the Committee shall cause such 
estimate and statement to be printed in the Congressional 
Record upon its receipt by the Committee.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives, a cost 
estimate provided by the Congressional Budget Office pursuant 
to section 402 of the Congressional Budget Act of 1974 was not 
made available to the Committee in time for the filing of this 
report. The Chairman of the Committee shall cause such estimate 
to be printed in the Congressional Record upon its receipt by 
the Committee.

                Committee Estimate of Budgetary Effects

    With respect to the requirements of clause 3(d)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 1879 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 1789 would clarify when a current or 
former President or Vice President, or a current or former 
federal officer, may remove a civil or criminal case brought 
against them in state court to federal court. The bill would 
also codify the immunity recognized by the U.S. Supreme Court 
in Trump v. United States for official acts carried out in the 
course of official duties.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 1789 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House rule XXI.

                       Federal Mandates Statement

    An estimate of federal mandates prepared by the Director of 
the Congressional Budget office pursuant to section 423 of the 
Unfunded Mandates Reform Act was not made available to the 
Committee in time for the filing of this report. The Chairman 
of the Committee shall cause such estimate to be printed in the 
Congressional Record upon its receipt by the Committee.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).

                      Section-by-Section Analysis


Section 1. Short title

    The Act is the ``Promptly Ending Political Prosecutions and 
Executive Retaliation Act of 2025.''

Section 2. Removal of certain actions

    This section clarifies the requirements to move a civil or 
criminal case from a state court to a district court.
    This section also extends eligibility to include current 
and former officers of the United States, current and former 
officers of any agency, the President, the Vice President, a 
former President, and a former Vice President.

Section 3. Procedure for removal of criminal cases

    This section provides greater procedural protections for 
when a federal official's case is removed.

Section 4. Official immunity

    This section adds a new section to Title 28, United States 
Code, which would codify the immunity recognized by the U.S. 
Supreme Court for official acts carried out by a federal 
official during the course of their federal duties.
    This section also prohibits the court, during its immunity 
determination, from examining officials acts that are not the 
subject of the charge or claim brought in state court.
    This section further permits the Attorney General to 
provide representation to any individual whose case is subject 
to removal based upon their current or past federal government 
service, prohibits state courts from defining the duties of 
federal officers, and requires that a federal court dismiss a 
pending case if it would interfere with the execution of the 
President's or Vice President's official duties.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE




           *       *       *       *       *       *       *
PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


    CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS


Sec.
     * * * * * * *
1456. Official immunity.

           *       *       *       *       *       *       *


Sec. 1442. Federal officers or agencies sued or prosecuted

  (a) A civil action or criminal prosecution that is commenced 
in a State court and that is against or directed to any of the 
following may be removed by them, upon a prima facie showing by 
the removing party that the standards for removal are met, to 
the district court of the United States for the district and 
division embracing the place wherein it is pending:
          (1) The 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,] or any 
        person who, at the time of removal, is an officer of 
        the United States (or any person acting under that 
        officer) or of any agency thereof, or was previously 
        such an officer, in an official or individual capacity, 
        for or relating to any act under color of such office 
        (including a discretionary exercise of any authority of 
        such office) or on account of any right, title or 
        authority claimed under any Act of Congress for the 
        apprehension or punishment of criminals or the 
        collection of the revenue.
          (2) A property holder whose title is derived from any 
        such officer, where such action or prosecution affects 
        the validity of any law of the United States.
          (3) Any officer of the courts of the United States, 
        for or relating to any act under color of office or in 
        the performance of his duties;
          (4) Any officer of either House of Congress, for or 
        relating to any act in the discharge of his official 
        duty under an order of such House.
          (5) The President or Vice President for or relating 
        to any act while in office or where the State court's 
        consideration of the claim or charge may interfere 
        with, hinder, burden, or delay the execution of the 
        duties of the President or the Vice President.
          (6) A former President or Vice President for or 
        relating to any act while in office.
  (b) A personal action commenced in any State court by an 
alien against any citizen of a State who is, or at the time the 
alleged action accrued was, a civil officer of the United 
States and is a nonresident of such State, wherein jurisdiction 
is obtained by the State court by personal service of process, 
may be removed by the defendant to the district court of the 
United States for the district and division in which the 
defendant was served with process.
  (c) Solely for purposes of determining the propriety of 
removal under subsection (a), a law enforcement officer, who is 
the defendant in a criminal prosecution, shall be deemed to 
have been acting under the color of his office if the officer--
          (1) protected an individual in the presence of the 
        officer from a crime of violence;
          (2) provided immediate assistance to an individual 
        who suffered, or who was threatened with, bodily harm; 
        or
          (3) prevented the escape of any individual who the 
        officer reasonably believed to have committed, or was 
        about to commit, in the presence of the officer, a 
        crime of violence that resulted in, or was likely to 
        result in, death or serious bodily injury.
  (d) In this section, the following definitions apply:
          (1) The terms ``civil action'' and ``criminal 
        prosecution'' include any proceeding (whether or not 
        ancillary to another proceeding) to the extent that in 
        such proceeding a judicial order, including a subpoena 
        for testimony or documents, is sought or issued. If 
        removal is sought for a proceeding described in the 
        previous sentence, and there is no other basis for 
        removal, only that proceeding may be removed to the 
        district court.
          (2) The term ``crime of violence'' has the meaning 
        given that term in section 16 of title 18.
          (3) The term ``law enforcement officer'' means any 
        employee described in subparagraph (A), (B), or (C) of 
        section 8401(17) of title 5 and any special agent in 
        the Diplomatic Security Service of the Department of 
        State.
          (4) The term ``serious bodily injury'' has the 
        meaning given that term in section 1365 of title 18.
          (5) The term ``State'' includes the District of 
        Columbia, United States territories and insular 
        possessions, and Indian country (as defined in section 
        1151 of title 18).
          (6) The term ``State court'' includes the Superior 
        Court of the District of Columbia, a court of a United 
        States territory or insular possession, and a tribal 
        court.

           *       *       *       *       *       *       *


Sec. 1455. Procedure for removal of criminal prosecutions

  (a) Notice of Removal.--A defendant or defendants desiring to 
remove any criminal prosecution from a State court shall file 
in the district court of the United States for the district and 
division within which such prosecution is pending a notice of 
removal signed pursuant to Rule 11 of the Federal Rules of 
Civil Procedure and containing a short and plain statement of 
the grounds for removal, together with a copy of all process, 
pleadings, and orders served upon such defendant or defendants 
in such action.
  (b) Requirements.--(1) A notice of removal of a criminal 
prosecution shall be filed not later than 30 days after the 
arraignment in the State court, or at any time before trial, 
whichever is earlier, except that for good cause shown the 
United States district court may enter an order granting the 
defendant or defendants leave to file the notice at a later 
time.
  (2) A notice of removal of a criminal prosecution shall 
include all grounds for such removal. A failure to state 
grounds that exist at the time of the filing of the notice 
shall constitute a waiver of such grounds, and a second notice 
may be filed only on grounds not existing at the time of the 
original notice. For good cause shown, the United States 
district court may grant relief from the limitations of this 
paragraph.
  (3) The filing of a notice of removal of a criminal 
prosecution [shall not] shall 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] and no judgment of conviction 
shall be entered unless the prosecution is remanded.
  (4) The United States district court in which such notice is 
filed shall examine the notice [promptly. If] promptly and 
where a prima facie showing demonstrating the basis for removal 
is made, the matter shall be removed. Only if it clearly 
appears on the face of the notice and any exhibits annexed 
thereto that removal should not be permitted, the court shall 
make an order for summary remand.
  (5) If the United States district court does not order the 
summary dismissal or the summary remand of such prosecution, it 
shall order [an evidentiary hearing] a hearing to be held 
promptly and, after such hearing, shall make such disposition 
of the prosecution as justice shall require including dismissal 
under section 1456. If the United States district court 
determines that removal shall be permitted or dismissal 
ordered, it shall so notify the State court in which 
prosecution is pending, which shall proceed no further.
  (c) Writ of Habeas Corpus.--If the defendant or defendants 
are in actual custody on process issued by the State court, the 
district court shall issue its writ of habeas corpus, and the 
marshal shall thereupon take such defendant or defendants into 
the marshal's custody and deliver a copy of the writ to the 
clerk of such State court.

Sec. 1456. Official Immunity

  (a) Immunity.--In any case that is subject to removal under 
section 1442(a), a Federal official shall be presumed to have 
immunity under article VI, clause 2 of the Constitution of the 
United States from any charge or claim made by or under 
authority of State law which may only be rebutted by clear and 
convincing evidence that the official was not acting under the 
color of such office or on account of any right, title or 
authority claimed under any Act of Congress for the 
apprehension or punishment of criminals or the collection of 
the revenue.
  (b) Determination of Immunity.--For purposes of making a 
determination of immunity under subsection (a), the following 
may not be admitted into evidence:
          (1) The nature, elements or any other aspect of the 
        charge or claim made by or under authority of State 
        law.
          (2) An act alleged to be official that is not the 
        subject of the charge or claim made by or under 
        authority of State law.
  (c) Representation.--In any case that is subject to removal 
under section 1442(a) that names a Federal official as a party, 
the Attorney General may--
          (1) represent such Federal official for any charge or 
        claim made by or under authority of State law; or
          (2) compensate private counsel retained by such 
        official at a reasonable prevailing rate for any such 
        charge or claim.
  (d) Prohibition on Limitation of Scope.--No court may define 
or limit the scope of the duties of an official of the 
Executive Office of the President.
  (e) Dismissal.--In any action subject to removal under 
paragraph (5) or (6) of section 1442(a), such case shall be 
dismissed unless rebutted by clear and convincing evidence 
establishing that the continued pendency of the State claim or 
charge would not in any way interfere, hinder, burden, or delay 
the execution of the duties of the President or Vice President.

           *       *       *       *       *       *       *


                            Dissenting Views

    H.R. 1789, the so-called ``Promptly Ending Political 
Prosecutions and Executive Retaliation Act,'' represents yet 
another example of how House Republicans are attempting to rig 
the rules to protect President Donald Trump and his cronies.\1\ 
This problematic bill would amend 28 U.S.C. Sec. 1442(a), the 
federal officer removal statute, to provide, among other 
things, for the removal of any state criminal or civil case to 
federal court that was brought against a current or former 
President or Vice President ``for or relating to any act while 
in office or where the State court's consideration of the claim 
or charge may interfere with, hinder, burden, or delay the 
execution of the duties of the President or Vice 
President.''\2\
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    \1\Congressional Republicans have attempted to misuse their power 
in other ways to help President Trump. For example, several House 
Republicans, egged on by Elon Musk and other Trump allies, have sought 
to intimidate federal judges by introducing or threatening to introduce 
articles of impeachment against those judges that rule against the 
Trump Administration. Carl Hulse, Musk and Republican Lawmakers 
Pressure Judges with Impeachment Threats, N.Y. Times (Mar. 1, 2025), 
https://www.nytimes.com/2025/03/01/us/politics/trump-musk-republicans-
congress-judge-impeachment.html. In a similar vein, congressional 
Republicans are now seeking to advance legislation to create many new 
judgeships so that President Trump can pack the federal courts with 
loyalist judges. See The JUDGES Act, H.R. 1702, 119th Cong. (2025).
    \2\Promptly Ending Political Prosecutions and Executive Retaliation 
Act, H.R. 1789 Sec. 2(a)(2), 119th Cong. (2025) [hereinafter ``H.R. 
1789''].
---------------------------------------------------------------------------
    In other words, Republicans want to make sure no state 
court can ever again consider any violation of state law that 
Mr. Trump engages in while President, even if that conduct has 
no relation to his official acts. Furthermore, the bill seeks 
to provide presumptive immunity for the President, Vice 
President, and federal officers in cases subject to removal. 
The bill would also allow any former federal officer other than 
a former President or Vice President to remove state cases for 
their acts under color of office. Notably this bill would apply 
to pending cases against federal officials named as co-
defendants in President Trump's criminal case in Georgia, such 
as former Trump White House Chief of Staff Mark Meadows.
    This bill, which should really be called the ``Donald J. 
Trump Relief Act,'' is a gift to the President and his co-
conspirators--who have failed again and again to remove their 
state criminal cases from New York and Georgia to federal 
courts where it might be harder to hold them accountable for 
their actual or alleged criminal conduct. To be clear, every 
federal court that has examined the facts and the law 
determined that neither President Trump's nor his co-
conspirator Mr. Meadows's state criminal cases qualified for 
removal under the current incarnation of the federal officer 
removal statute because the conduct for which they were charged 
were not official acts made pursuant to their duties as federal 
officers.\3\
---------------------------------------------------------------------------
    \3\See People v. Trump, 683 F. Supp. 3d 334, 342 (S.D.N.Y. 2023); 
State v. Meadows, 88 F.4th 1331 (2023).
---------------------------------------------------------------------------
    Amending federal removal statutes primarily because one 
individual, Donald Trump, wants to falsely assert that multiple 
state officials were hostile to him and his cronies in the past 
because of his policies would be an egregious misuse of 
congressional authority. H.R. 1789 would undermine our system 
of federalism and the rule of law simply to benefit President 
Trump and his cronies.

I. H.R. 1789 is Part of House Republicans' Effort To Promote President 
Trump's False Narrative That He is the Victim of Political Persecution 
              To Justify His Subversion of the Rule of Law

    Since the 2024 presidential election, President Trump no 
longer appears to be in immediate legal jeopardy in New York 
and Georgia. Republicans, however, are still so eager to prove 
their loyalty to President Trump that they continue to promote 
H.R. 1789 as a ``remedy'' to the false narrative that these 
state charges were ``politically motivated.'' Moreover, Mr. 
Meadows's case, and those of the remaining Georgia defendants, 
are still pending, and H.R. 1789 would apply ``to civil actions 
or criminal prosecutions pending on the date of enactment of 
this Act or commenced on or after such date.''\4\ To be clear, 
every federal court that examined the facts and the law 
determined that neither President Trump's nor his co-
conspirators' state criminal cases qualified for removal under 
the current federal officer removal statute because the conduct 
for which they were charged did not constitute official acts 
made pursuant to their duties as federal officers.\5\ This 
false political narrative, then, is simply a pretext for H.R. 
1789's proposed expanded removal jurisdiction for federal 
officers. The bill is ultimately designed to benefit President 
Trump and some of his allies who are still facing criminal 
charges. H.R. 1789 is an attempt to place them beyond the reach 
of state courts, even for state criminal charges or civil 
claims stemming from their purely personal conduct.
---------------------------------------------------------------------------
    \4\H.R. 1789 Sec. Sec. 2(b), 4(b). See also H.R. 1789 Sec. 3(b) 
(applying section 3 of the bill to state criminal actions pending on or 
commenced after the enactment date.).
    \5\See People v. Trump, 683 F. Supp. 3d 334, 342 (S.D.N.Y. 2023); 
State v. Meadows, 88 F.4th 1331 (2023).
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A. STATE CRIMINAL CASES AGAINST PRESIDENT TRUMP AND HIS CO-CONSPIRATORS

    Prior to the 2024 presidential election, then-former 
President Trump faced multiple criminal charges, including in 
two state criminal cases filed in New York and Georgia, as well 
as civil claims filed under state law.\6\ On March 30, 2023, 
Manhattan District Attorney Alvin Bragg indicted then-former 
President Trump on 34 felony counts of falsifying business 
records for Mr. Trump's efforts to conceal information that 
could have been harmful to his 2016 presidential campaign.\7\ 
Mr. Trump's unlawful activity included a ``catch and kill'' 
operation to ``identify, purchase, and bury negative 
information about him and boost his electoral prospects.''\8\
---------------------------------------------------------------------------
    \6\Politico Staff, Tracking the Trump Criminal Cases, Politico 
(Nov. 6, 2024), https://www.politico.com/interactives/2023/trump-
criminal-investigations-cases-tracker-list/.
    \7\Shayna Jacobs, Josh Dawsey, Devlin Barrett & Jacqueline Alemany, 
Trump Indicted by N.Y. Grand Jury, First Ex-president Charged with 
Crime, Wash. Post (Mar. 30, 2023), https://www.washingtonpost.com/
national-security/2023/03/30/trump-ny-indictment/.
    \8\Press Release, District Attorney Bragg Announces 34-Count Felony 
Indictment of Former President Donald J. Trump, Manhattan Dist. Att'y's 
Off. (Apr. 4, 2023), https://manhattanda.org/district-attorney-bragg-
announces-34-count-felony-indictment-of-former-
president-donald-j-trump/. This allegedly included hush money payments 
to a woman who claimed to have a sexual affair with Mr. Trump 
($150,000), to a doorman who allegedly had information about Mr. Trump 
having fathered an illegitimate child ($30,000), and to adult film 
actress Stormy Daniels not to disclose her sexual relationship with Mr. 
Trump ($130,000). Id.
---------------------------------------------------------------------------
    Mr. Trump unsuccessfully sought to have his New York 
criminal case removed to federal court pursuant to 28 U.S.C. 
Sec. 1442(a), the federal statute that governs the removal of 
state cases against federal officers to federal court. Federal 
district court Judge Alvin K. Hellerstein ruled that the case 
could not be removed, stating: ``Hush money paid to an adult 
film star is not related to a president's official acts. It 
does not reflect in any way the color of the president's 
official duties.''\9\ In May 2024, Mr. Trump was convicted of 
34 felony counts in the New York case, becoming the first 
American president ever tried and convicted of a crime.\10\ At 
his sentencing hearing on January 10, 2025, following the 
results of the 2024 presidential election, Judge Juan Merchan 
granted then-President-elect Trump an unconditional discharge, 
reasoning that this was the only sentence that would not 
encroach on the Office of the President.\11\
---------------------------------------------------------------------------
    \9\Jonah E. Bromwich, Trump Hush Money Case Will Remain in New York 
State Court, Judge Rules, N.Y. Times (Jul. 19, 2023), https://
www.nytimes.com/2023/07/19/nyregion/trump-hush-money-case-court.html.
    \10\Peter Charalambous & Ivan Pereira, Donald Trump Becomes 1st US 
President Tried and Convicted of Crimes, ABC News (May 30, 2024), 
https://abcnews.go.com/US/former-president-donald-trump-found-guilty-
manhattan-hush/story?id=110647273.
    \11\Ximena Bustillo, Trump is Sentenced in Hush Money Case--But 
Gets No Penalty or Fine, NPR (Jan. 10, 2025), https://www.npr.org/2025/
01/10/nx-s1-5253927/trump-sentencing-new-york.
---------------------------------------------------------------------------
    On August 14, 2023, a Georgia jury indicted Mr. Trump and 
18 of his associates on 41 felony criminal charges under 
numerous state racketeering, fraud, and conspiracy statutes 
related to their attempts to overturn the lawful results of the 
2020 presidential election throughout the state. Mr. Trump was 
charged on 13 of these counts, including violation of the 
Georgia RICO statute. Fani Willis, the District Attorney for 
Fulton County, Georgia, opened this investigation into Mr. 
Trump after the release of a recording of a January 2021 phone 
call between then-President Trump and Georgia's Secretary of 
State, Brad Raffensperger, in which Mr. Trump told Mr. 
Raffensperger to ``find'' the votes for Mr. Trump to win the 
state's electoral votes and overturn his narrow loss to Joe 
Biden.\12\ The 18 charged Trump associates included Mr. 
Meadows, his former Chief of Staff; Rudolph Guiliani, his 
lawyer; John Eastman, the lawyer who helped originate the 
theories under which Mr. Trump sought to overturn election 
results; and 15 others.\13\
---------------------------------------------------------------------------
    \12\Stephen Fowler, Georgia District Attorney is Investigating 
Trump's Call to Overturn Election, NPR (Feb. 10, 2021), https://
www.npr.org/2021/02/10/966332808/georgia-district-attorney-is-
investigating-trumps-call-to-overturn-election.
    \13\Trump and 18 allies charged in Fulton County grand jury 
indictment: Highlights, NBC News (Aug. 15, 2023), https://
www.nbcnews.com/politics/donald-trump/live-blog/trump-georgia-
indictment-rcna98900.
---------------------------------------------------------------------------
    Notably, Mr. Meadows and four other defendants filed 
motions to have their cases removed to federal court pursuant 
to 28 U.S.C. Sec. 1442, where they likely hoped to have a more 
sympathetic jury pool and to have the case delayed.\14\ Federal 
district court Judge Steven Jones denied Mr. Meadows's motion 
for removal, finding that Mr. Meadows ``failed to demonstrate 
how the election-related activities that serve as the basis for 
the charges in the Indictment are related to any of his 
official acts.''\15\ Mr. Trump filed a notice to the state 
court on September 7, 2023, stating that he ``may'' request 
removal to federal court.\16\ On September 28, 2023, however, 
Mr. Trump's lawyers dropped his removal request and, a day 
later, Judge Jones denied the remaining four defendants' 
request to remove their state criminal cases to federal 
court.\17\ On December 18, 2023, the U.S. Court of Appeals for 
the Eleventh Circuit upheld Judge Jones' order remanding Mr. 
Meadows's case to state court, holding that the federal officer 
removal statute did not apply to former federal officers and, 
even if the statute did apply to former officers, the acts for 
which prosecutors charged Mr. Meadows with violating state law 
were not for or related to his ``color of office.''\18\ While 
four of President Trump's co-defendants have so-far pleaded 
guilty to state charges related to Mr. Trump's attempts to 
overturn the results of the 2020 election in Georgia,\19\ the 
case remains in legal limbo as of this writing.
---------------------------------------------------------------------------
    \14\Alexander Hutzler, Why Trump, Other Georgia Defendants Might 
Try to Get Cases Removed to Federal Court, ABC News (Sep. 7, 2023), 
https://abcnews.go.com/Politics/trump-georgia-
defendants-move-case-federal-court/story?id=102311382.
    \15\Olivia Rubin, Judge Denies Mark Meadows' Bid to Remove His 
Georgia Election Case to Federal Court, ABC News (Sep. 8, 2023), 
https://abcnews.go.com/US/judge-denies-mark-
meadows-bid-remove-georgia-election/story?id=103041811.
    \16\Jacob Knutson, Trump Tells Judge He ``May'' Ask to Move Georgia 
Case to Federal Court, Axios (Sep. 7, 2023), https://www.axios.com/
2023/09/07/trump-georgia-may-move-federal-court.
    \17\Olivia Raben, Trump Drops Bid to Move Georgia Election Case to 
Federal Court; Remaining 4 Bids Are Denied, ABC News (Sep. 29, 2023), 
https://abcnews.go.com/US/trump-filing-seek-
remove-georgia-election-case-federal/story?id=103580385. The remaining 
four defendants were former Justice Department official Jeffrey Clark 
and so-called ``alternate electors'' David Shafer, Cathy Latham and 
Shawn Still. Id.
    \18\See State v. Meadows, 88 F.4th 1331 (2023).
    \19\Clare Hymes & Graham Kates, Why Guilty Pleas in Georgia 2020 
Election Interference Case Pose Significant Risk to Donald Trump, CBS 
News (Oct. 30, 2023), https://www.cbsnews.com/news/trump-codefendants-
guilty-pleas-georgia-criminal-case-2020-election/.
---------------------------------------------------------------------------

 II. Taking Their Cues From President Trump, Republicans Want To Pass 
  H.R. 1789 To Rig The Rules, Making It Easier Not Only for President 
        Trump, but His Cronies, To Evade Justice in State Court

    H.R. 1789 would effectively strip states of their sovereign 
power to prosecute current or former Presidents or Vice 
Presidents for violations of state laws, and seeks to put a 
thumb on the scale in favor of removal of state cases not only 
against the President and Vice President, but against all 
federal officers, both current and former. The Supreme Court 
has made clear that the federal officer removal statute is 
intended to balance the interests of protecting federal 
officers from states seeking to unduly interfere with federal 
government operations, on the one hand,\20\ with the authority 
of states to apply, shape, and enforce their laws, on the 
other.\21\ Yet Republicans seek to amend the federal officer 
removal statute not because the states have proven eager to 
stymie the operations of the federal government or federal law 
through the prosecution of federal officers, but because state 
prosecutors had the audacity to prosecute President Trump and 
his cronies for unofficial acts committed during the course of 
criminal conduct.
---------------------------------------------------------------------------
    \20\See Tennessee v. Davis, 100 U.S. 257, 263 (1880) (noting that 
if a state can compel a federal officer to stand trial ``for an alleged 
offense against the law of the State, yet warranted by the Federal 
authority they possess,'' then there is a risk that ``the operations of 
the general government may at any time be arrested at the will of one 
of its members.''). See also People v. Trump, 683 F. Supp. 3d 334, 342 
(S.D.N.Y. 2023) (noting that the aim of the federal officer removal 
statute was to prevent individual states ``from using their laws to 
hinder the federal government from exercising its lawful authority.'').
    \21\See Mesa v. California, 489 U.S. 121, 138 (1989) (noting that 
liberal construction of the federal officer removal statute must be 
balanced with strong judicial policy against federal interference in 
state criminal proceedings).
---------------------------------------------------------------------------

A. H.R. 1789 SEEKS TO PROVIDE IMMUNITY FOR ALL FEDERAL OFFICERS FACING 
                STATE CIVIL CLAIMS AND CRIMINAL CHARGES

    Section 4(a) of the bill, which purports to grant 
``presumptive'' immunity to state civil claims and criminal 
charges for all federal officials in cases subject to removal 
under 28 U.S.C. Sec. 1442(a) based on the Supremacy Clause is 
likely constitutionally deficient.\22\ The Supremacy Clause is 
effectively a choice-of-law provision that provides no 
substantive rights, let alone criminal or civil immunity for 
federal officials.\23\ This appears to be a transparent attempt 
to provide a ``catchall'' federal defense for all federal 
officers to undergird the expanded removal jurisdiction 
provided under the bill, though its reliance on the Supremacy 
Clause likely means that it fails to actually achieve that end.
---------------------------------------------------------------------------
    \22\H.R. 1789 Sec. 4(a).
    \23\The Supremacy Clause reads ``[t]his Constitution, and the Laws 
of the United States which shall be made in Pursuance thereof; and all 
Treaties made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land; and the Judges in 
every State shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding.'' U.S. Cont. Art. 
VI, Cl. 2.
---------------------------------------------------------------------------
    Under 28 U.S.C. Sec. 1442(a), an officer of the United 
States, an officer of either house of Congress, or an officer 
of the courts of the United States may move to have state 
criminal or civil cases against them removed from state to 
federal court if the civil claim or criminal prosecution is 
``for or relating to any act under color of such office.''\24\ 
The Constitution prohibits Congress from expanding the scope of 
cases that can be removed to federal court to the extent that a 
case falls outside of the federal courts' Article III subject 
matter jurisdiction. Although Article III authorizes Congress 
to create inferior federal courts, it also limits the 
``original Jurisdiction'' of federal courts to certain cases 
``arising under this Constitution, the laws of the United 
States'' and to cases ``between Citizens of different states,'' 
among other limitations.\25\
---------------------------------------------------------------------------
    \24\28 U.S. Code Sec. 1442(a)(1-4).
    \25\Article III, Section 2 reads, in relevant part: ``The judicial 
Power shall extend to all Cases, in Law and Equity, arising under this 
Constitution, the Laws of the United States, and Treaties made, or 
which shall be made, under their Authority;--to all Cases affecting 
Ambassadors, other public Ministers and Consuls;--to all Cases of 
admiralty and maritime Jurisdiction;--to Controversies to which the 
United States shall be a Party;--to Controversies between two or more 
States;--between a State and Citizens of another State,--between 
Citizens of different States,--between Citizens of the same State 
claiming Lands under Grants of different States, and between a State, 
or the Citizens thereof, and foreign States, Citizens or Subjects. In 
all Cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have 
original Jurisdiction. In all the other Cases before mentioned, the 
supreme Court shall have appellate Jurisdiction, both as to Law and 
Fact, with such Exceptions, and under such Regulations as the Congress 
shall make.'' U.S. Cont. Art. III, Sec. 2. (emphases added).
---------------------------------------------------------------------------
    The Supreme Court applied Article III's limitation on 
federal court jurisdiction to limit the reach of the federal 
officer removal statute in Mesa v. California, where it held 
that the Constitution requires that ``[f]ederal officer removal 
under 28 U.S.C. Sec. 1442(a) must be predicated upon averment 
of a federal defense.''\26\ To remove a civil or criminal case 
on the basis of section 1442(a)(1), defendants are required to 
show they are officers of the United States or acting under the 
direction of one; that they are facing charges ``for or 
relating to any act under color of such office''; and that they 
raised or will raise a ``colorable federal defense,'' such as 
immunity from civil liability or criminal prosecution.\27\ As 
the Mesa Court explained:
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    \26\Mesa, 489 U.S. at 139.
    \27\Id.

          Section 1442(a), in our view, is a pure 
        jurisdictional statute, seeking to do nothing more than 
        grant district court jurisdiction over cases in which a 
        federal officer is a defendant. Section 1442(a), 
        therefore, cannot independently support Art. III 
        ``arising under'' jurisdiction. Rather, it is the 
        raising of a federal question in the officer's removal 
        petition that constitutes the federal law under which 
        the action against the federal officer arises for Art. 
        III purposes.\28\
---------------------------------------------------------------------------
    \28\Id. at 136 (emphasis added).

    Apparently cognizant of this constitutional requirement, 
H.R. 1789's authors included a provision that adds a new 
section 1456 at the end of chapter 89 of title 28, United 
States Code. Chapter 89 contains the various statutes governing 
the removal of cases to federal court. Under the bill's 
proposed section 1456(a), in any case subject to removal under 
the federal officer removal statute, a federal ``official shall 
be presumed to have immunity under'' the Constitution's 
Supremacy Clause from any state criminal charge or civil claim. 
The Supremacy Clause, which is effectively a choice-of-law 
provision, is not a source of federal rights or authority for 
individual officials, let alone immunity of any kind. As 
Professor Elizabeth Beske, a former clerk for the author of the 
Court's unanimous decision in Mesa, Justice Sandra Day 
O'Connor, testified at a legislative hearing held the day 
---------------------------------------------------------------------------
before the markup of H.R. 1789:

          Justice Scalia--one of the best writers on the 
        Supreme Court, then and since--stated it plainly: `the 
        Supremacy Clause is not the source of any federal 
        rights.' 575 U.S. 320, 324 (2015). In other words, it 
        lacks independent content. So, a unanimous Supreme 
        Court has clearly told us we cannot look to the 
        Supremacy Clause to find any federal rights. It just 
        tells us what to do once we have found them. Plainly, 
        then, Section 1456 and the Supremacy Clause themselves 
        cannot provide content for a brand new, very expansive 
        defense.\29\
---------------------------------------------------------------------------
    \29\Hearing on Legislative Reforms to End Lawfare by State and 
Local Prosecutors Before the Subcomm. on the Constitution and Limited 
Gov't of the H. Comm. on the Judiciary, 119th Cong. (2025) [hereinafter 
``H.R. 1789 Hearing''] (written testimony of Elizabeth Beske, Professor 
of Law, American University Washington College of Law, at 4) 
[hereinafter ``Beske Testimony''].

    Professor Beske concluded that ``[s]ection 1456, by itself, 
does not solve a Mesa problem.''\30\ This section, then, 
appears to be a transparent, and likely constitutionally 
defective, attempt to provide a ``catchall'' federal defense 
for all federal officers to predicate the unjustified expansion 
of removal jurisdiction provided under H.R. 1789.
---------------------------------------------------------------------------
    \30\Id.
---------------------------------------------------------------------------
    Perhaps more egregious, section 1456(a) further provides 
that this proposed, ``very expansive'' defense ``may only be 
rebutted by clear and convincing evidence that the [federal] 
official was not acting under color of such office or on 
account of any right, title or authority claimed under any Act 
of Congress for the apprehension or punishment of criminals or 
the collection of the revenue.'' Proposed section 1456(a) seems 
to be intended to create a presumption in favor of removal, 
shifting the substantial burden of proof on the party opposing 
removal to demonstrate--by a heightened ``clear and 
convincing'' standard--that removal is not justified under 
section 1442(a)(1). This provision is just one example of many 
where Republicans have designed H.R. 1789 to put a thumb on the 
scale in favor of removal by a federal officer, regardless of 
whether it serves to balance the federal and state interests 
that the federal officer removal statute is meant to preserve.

B. H.R. 1789 IS AN ATTACK ON FEDERALISM AND STATE COURTS' PRIMARY ROLE 
    IN ENFORCING CRIMINAL VIOLATIONS UNDER OUR CONSTITUTIONAL ORDER

    H.R. 1789 would deeply and unjustifiably intrude on state 
courts' role in shaping state criminal law. As previously 
noted, the federal officer removal statute is meant to protect 
the operations of the federal government. Indeed, the Supreme 
Court, in considering the purpose behind the federal officer 
removal statute, has urged that it be ``liberally 
construed.''\31\ The Supreme Court in Mesa, however, also 
observed the admonition of prior courts that ``[i]n criminal 
cases . . . the Court's liberal construction of the statute 
should be balanced against a `strong judicial policy against 
federal interference with state criminal proceedings' because 
`preventing and dealing with crime is much more the business of 
the States than it is of the Federal Government.'''\32\ Heeding 
the Court's warning against undue federal interference with 
state criminal proceedings, Democratic members offered 
amendments during the Committee's markup of H.R. 1789. For 
example, Rep. Jerrold Nadler (D-NY) offered an amendment to 
exempt the removal of cases alleging state criminal fraud 
violations. Similarly, Rep. Becca Balint (D-VT) offered an 
amendment to exempt alleged crimes related to sexual assault 
from being removable from state court to federal court. These 
amendments would have exempted from removal state crimes 
charged against federal officers that, on their face, involve 
alleged acts that are clearly outside of the scope of their 
federal duties. Yet in pursuit of their goal to make it easier 
for President Trump and his cronies to remove state criminal 
cases to federal courts, Republicans rejected these amendments 
by party line votes.
---------------------------------------------------------------------------
    \31\Colorado v. Symes, 286 U.S. 510, 517 (1932).
    \32\Mesa, 489 U.S. at 138 (citation omitted).
---------------------------------------------------------------------------
    Relatedly, proposed section 1456(d) prohibits a court from 
``defin[ing] or limit[ing] the scope of the duties of an 
official of the Executive Office of the President.''\33\ This 
provision may raise significant separation of powers concerns 
with respect to the judiciary's role in determining what the 
law is. Moreover, as a practical matter, it is unclear how a 
court should determine whether federal officer removal is 
appropriate without examining (and thereby potentially 
defining) the outer boundaries of a defendant's official 
duties. At the markup of H.R. 1789, during an extended colloquy 
with Rep. Russell Fry (R-SC), the bill's sponsor, on the 
purported effect of this provision and its constitutionality, 
Rep. Fry's responses implied that any concerns were unwarranted 
because the provision was meant only to limit the ability of 
state courts to consider the ``scope of duties of an official 
of the Executive Office of the President,'' presumably because 
federal courts are better situated to determine an issue that 
may involve a federal question. When an amendment was offered, 
however, to expressly limit section 1456(d) to state courts, 
Republicans again rejected this amendment by a party line vote.
---------------------------------------------------------------------------
    \33\H.R. 1789 Sec. 4(a).
---------------------------------------------------------------------------
    At every opportunity presented to defend federalism, once a 
cornerstone of conservative political ideology, Committee 
Republicans instead revealed that their slavish devotion to 
President Trump outweighed any past commitment to important 
constitutional principles.

  C. H.R. 1789'S EXPANSION OF THE FEDERAL OFFICER REMOVAL STATUTE TO 
ALLOW PRESIDENTS AND VICE PRESIDENTS TO REMOVE STATE CIVIL CASES BASED 
 ON THEIR PURELY PRIVATE CONDUCT TO FEDERAL COURT IS AN EXTRAORDINARY 
   INTRUSION INTO STATE SOVEREIGNTY AND ERODES FEDERALISM'S BULWARK 
                            AGAINST TYRANNY

    Another particularly egregious example of how H.R. 1789 
seriously erodes federalism's ``protection against 
tyranny,''\34\ as Professor Beske characterized it, is its 
``dramatic expansion''\35\ of a current or former President's 
ability to remove state cases to federal court to include state 
civil cases that are based on purely private matters. 
Specifically, section 2(a)(2) of the bill would add to the 
current federal officer removal statute a new subsection 
allowing a sitting President or Vice President to remove a case 
``for or relating to any act while in office or where the State 
court's consideration of the claim or charge may interfere 
with, hinder, burden, or delay the execution of the duties of 
the President or Vice President.''\36\ Effectively, this 
provision would allow a President or Vice President to remove a 
case to federal court for ``any act,'' even if the act 
concerned only the President or Vice President's purely private 
conduct. The bill also extends this removal authority to ``any 
act'' of a former President or Vice President taken while that 
person was in office.\37\ Such an expansion of removal 
authority flies in the face of Supreme Court precedent holding 
that a President enjoys no immunity from civil liability for 
such kinds of lawsuits (meaning that a President enjoys no 
``colorable federal defense'' from such a lawsuit, as the Court 
has said is constitutionally required in order to support 
federal officer removal under Mesa.)\38\
---------------------------------------------------------------------------
    \34\H.R. 1789 Hearing, Unofficial Tr. at 52.
    \35\Beske Testimony at 3.
    \36\H.R. 1789 Sec. 2(a)(2).
    \37\Id.
    \38\See Clinton v. Jones, 520 US 681, 692-697 (1997) (rejecting 
claims of Presidential immunity from civil liability for unofficial 
conduct).
---------------------------------------------------------------------------
    As Professor Beske explained in her written testimony 
before the Subcommittee on the Constitution and Limited 
Government, if

        by this provision, the bill seeks to expand removal to 
        encompass lawsuits against Presidents and Vice 
        Presidents involving purely private matters--the Trump 
        University cases, the Paula Jones suits, and whatnot--
        this is a dramatic expansion of the removal statute and 
        a restructuring of the state-federal balance that ought 
        to merit [Congress's] full attention. Removal is 
        intrusive; it divests state courts of jurisdiction. It 
        would be surprising to see Congress make a move with 
        such federalism implications in the absence of a clear 
        statement, particularly because the Supreme Court has 
        repeatedly, and recently, made clear that the 
        Constitution provides no shield against these lawsuits.

        . . .

          Of course, even if Congress were attempting quietly 
        to make such a far-reaching expansion of federal 
        jurisdiction, per Mesa, no removal would be permissible 
        unless the President or Vice President had in pocket a 
        ``colorable federal defense.'' The Mesa limitation, 
        required by the Constitution, restricts all 
        jurisdiction conferred by the statute. But it is worth 
        flagging that the new section [expanding a President's 
        or Vice President's ability to remove state cases to 
        federal court for ``any act'' committed while in 
        office] appears to propose something rather 
        extraordinary.\39\
---------------------------------------------------------------------------
    \39\Beske Testimony at 3-4.
---------------------------------------------------------------------------

                               CONCLUSION

    Committee Republicans seek to advance H.R. 1789 based on 
the false premise that state criminal and civil matters against 
Donald Trump were evidence of political persecution against 
him. I will not relitigate the merits of these matters here 
beyond noting that Mr. Trump was convicted by a jury of his 
peers of 34 state felony counts in New York. Beyond the false 
premise that the Republicans advance in support of H.R. 1789, 
the bill is deeply problematic on the merits because it upends 
in numerous ways the careful balance represented by the federal 
officer removal statute between protecting federal officers' 
ability to carry out their lawful duties without undue state 
interference, on the one hand, and states' sovereign power to 
shape and enforce their laws, on the other. This bill is yet 
another example of the fact that Congressional Republicans will 
stop at almost nothing to protect Mr. Trump and his cronies 
from accountability. For these and all the foregoing reasons, I 
oppose this bill.

                                              Jamie Raskin,
                                                    Ranking Member.

                                  [all]