[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.
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\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).
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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.
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\2\28 U.S.C. Sec. 1442(a).
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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\
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\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\
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\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'').
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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\
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\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).
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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\
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\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.
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\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.
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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\
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\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)).
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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\
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\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).
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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\
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\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.
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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\
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\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\
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\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.
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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\
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\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.
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\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''].
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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\
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\3\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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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.
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\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\
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\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.
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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\
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\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.
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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\
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\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.
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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/.
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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.
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\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).
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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.
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\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\
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\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:
---------------------------------------------------------------------------
\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\
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\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\
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\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.
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\30\Id.
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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.
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\31\Colorado v. Symes, 286 U.S. 510, 517 (1932).
\32\Mesa, 489 U.S. at 138 (citation omitted).
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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.
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\33\H.R. 1789 Sec. 4(a).
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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\
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\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).
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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\
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\39\Beske Testimony at 3-4.
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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]