State prosecutions of ICE agents may end up in federal courts, but any conviction would be beyond the president’s pardon power.
In October, San Francisco’s district attorney announced that she would prosecute Immigration and Customs Enforcement (ICE) officers who violated state and local laws, including through the use of excessive force. In response, Deputy Attorney General Todd Blanche claimed that threatening such state law prosecutions is a conspiracy to interfere with immigration law enforcement in violation of federal law.
In fact, history shows that state prosecutions of federal officers are permissible, and that the federal government’s interests are protected through removal—not by counter-prosecution, as Blanche has proposed. Although some advocates of using state law to curb abuses have opined that such criminal prosecutions would take place in “state court,” that assertion is only half right: Prosecutions would begin in state court but would likely be removed by the defendants to federal court under the seldom-used “criminal prosecution” prong of federal-officer removal set forth at 18 U.S.C. § 1442(a)(1).
In that circumstance, state prosecutors would prosecute the case in federal court, before a federal judge, with a jury selected under procedures for the federal district. The federal court would apply state substantive law and federal procedural law, and any appeal from a prosecution for California offenses would take place in the U.S. Court of Appeals for the Ninth Circuit. Importantly, even though any resulting conviction would occur before a federal judge, the president would be unable to pardon any defendant, since the convictions (regardless of forum) would still be for state offenses and thus beyond his constitutional pardon power. Any conviction would still be subject to the pardon power of the relevant state authority.
Although the administration has now walked back its promises of mass raids in San Francisco, the ongoing and future deployment of federal law enforcement personnel in blue states suggests this issue will arise again. It has been clear for more than a century that “[o]f course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment.” By enacting the criminal federal officer removal provision, Congress provided a federal forum to decide whether a given state prosecution is within the scope of immunity for federal officers. The possibility of state prosecutions of federal officials has important implications not just in the immigration enforcement context, but in other areas, such as public corruption, where changing federal priorities have sharply reduced federal prosecutions.
Federal Criminal Removal: State Prosecutors in Federal Court
Federal officials acting in the course of their official duties are seldom charged in state court. When a federal official is charged, it is usually in federal court for a violation of federal law, such as civil rights violations or bribery. However, the storied Justice Department components that prosecute these crimes have been eviscerated by this administration, and the federal government has thus far shown little interest in prosecuting ICE officials for violations of the Constitution and the laws of the United States.
In response, some local prosecutors have signaled a willingness to prosecute federal officers for abusive conduct under general state laws that do not—unlike federal civil rights offenses—require proof that an officer knew he was violating a constitutional right (18 U.S.C. § 242).
If federal officers are charged in state court for criminal violations in the course of their official duties (as opposed to charges unrelated, such as those stemming from a domestic altercation), the federal defendants will almost certainly seek to remove their state cases to federal court. The vehicle for such removal is 28 U.S.C. § 1442(a)(1), which provides:
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 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, in an official or individual capacity, for or relating to any act 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.
In plain language, a federal agent criminally charged in state court for assault in the course of his duties may remove his case from state to federal court. Lawyers are likely more familiar with the statute that immediately precedes this one, 28 U.S.C. § 1441, which is the oft-used mechanism for generally removing civil cases to federal court, or with the civil removal aspect of § 1442(a), which is sometimes invoked by private civil defendants claiming that they were “acting under” a federal officer.
The question then naturally arises: After a state prosecution is removed to federal court, who prosecutes the case? Ordinarily, prosecutions in federal court may be carried out only by the Department of Justice. But these removal cases are the exception. The law is clear: The state prosecutor continues to prosecute the case in federal court, with the federal district court applying state substantive law and federal procedural law. Though this may sound unusual, it’s precisely what federal courts do in many civil cases under the Erie doctrine, when federal courts apply substantive state law and federal procedural law in cases subject to diversity jurisdiction.
Although removals are much less frequent in criminal cases compared to civil, they do happen, often reflecting tensions between federal and state officials. The contours of Supremacy Clause immunity, which traces to a Supreme Court decision from 1890, are still developing, but the doctrine essentially immunizes federal officers from state criminal liability for acts necessary and proper in the performance of their federal duties. Supremacy Clause immunity would apply in state or federal court, but state-indicted federal officers are likely to prefer an adjudication in a federal forum where they are before a life-tenured judge (rather than one who may have to stand for local election) and a jury drawn from a wider area, and where the Federal Rules of Evidence apply. (For a more thorough analysis of immunity, see this Lawfare article.)
Removal to federal court can also create administrative and financial headaches for local prosecutors. At minimum, the unfamiliarity and relative complexity of federal criminal procedures and customs will add time and expense to the prosecution. Early motions practice falls under procedures for criminal removals enacted in 2011. In a few states, local prosecutors may have to defer to statewide officers like an attorney general’s office to handle the case in federal court. More commonly, local prosecutors will have authority to continue in federal court but will lack the resources or the budget to do so.
Assuming a conviction results in federal court, what next? Again, the law is clear: The case will be appealed to the relevant federal circuit court of appeals, and then the defendant may seek review before the Supreme Court.
The President Cannot Pardon Offenses Removed to Federal Court
Given this administration’s unprecedented use of the pardon power, one can imagine that the president would attempt to quickly pardon anyone convicted of state offense in federal court in connection with the administration’s aggressive immigration enforcement.
But he can’t.
Understanding why requires parsing two different clauses of the Constitution: the Jurisdiction Clause of Article III and the Pardon Clause of Article II. A careful reading makes clear that while removed criminal cases “aris[e] under the laws of the United States,” and are therefore subject to federal criminal jurisdiction, they are not “offenses against the United States” and thus are not subject to presidential pardon. As discussed in the next section, this structural difference between the jurisdiction conferred in Article III to federal court and the scope of the pardon power conferred to the president in Article II has potentially important implications for state enforcement when the president has threatened to wield his pardon authority to reward those who break the law in his name.
As every first-year law student knows, federal courts are courts of limited subject matter jurisdiction. Such courts can only exercise power conferred to them by the Constitution and the laws of the United States. As relevant here, 28 U.S.C. § 1442(a)(1)’s removal provisions rely on Article III of the Constitution, which states that “the judicial power shall extend to all cases, in law and equity, arising under this Constitution [and] the laws of the United States.” For nearly 150 years, the Supreme Court has been crystal clear that in criminal cases where a federal employee asserts a defense under federal law, courts have jurisdiction to hear such a case upon removal because it “aris[es] under” the “laws of the United States.” Thus, the scope of Article III’s “arising under” jurisdiction is broader than typical “arising under” jurisdiction in the civil context, which depends on whether a federal law issue arises on the face of the complaint, not from any potential defense. Congress authorized removal to provide a federal forum for federal officers asserting immunity based on federal law in both civil and criminal cases.
What then of the president’s pardon power? For starters, the power is capacious and unreviewable. It extends, by the plain text of Article II, to all “Offences against the United States, except in Cases of Impeachment.” It is similarly well-established that the president’s power to pardon does not extend to state offenses. Thus, the question: If a removed state criminal case “arises under” the “laws of the United States” for jurisdictional purposes, are the substantive state-law charges also “offense[s] against the United States” that the president may pardon?
While no court has conclusively decided this issue, precedent and the structure of the Constitution dictate that answer is “no.” The availability of an immunity defense arising under federal law does not change which sovereign is prosecuting the offense. The president may not pardon such offenses even when they have been removed to federal court. This stands in sharp contrast to convictions under the Assimilative Crimes Act, 18 U.S.C. § 13, which allows federal courts to incorporate state criminal law to cover acts committed on federal land not otherwise covered by federal law (for example, a domestic assault that takes place on a military base), and which may be pardoned by the president. Those are federal offenses—“against the United States”—because the federal statute borrows the law of the state surrounding the federal enclave, and they are prosecuted by the Justice Department. The charging documents themselves arise under federal law for purposes of Article III.
The analysis is different for a state prosecution removed to federal court. First, consider the Supreme Court’s statements on the matter. In 1879, in Tennessee v. Davis, the Court considered a removed prosecution by Tennessee for a state murder charge against a federal revenue officer. In his opinion allowing removal, Justice William Strong held that the case was one “arising under” the “laws of the United States” because the revenue officer had a potential federal defense. He expressly rejected the argument that 1442(a)(1) was “intended only [to include] such prosecutions in State courts as are for offenses against the United States—offenses against the revenue laws” (emphasis added). In other words, Justice Strong drew an explicit line between the state offenses covered by 1442(a)(1) and “offenses against the United States,” which are covered by the president’s pardon power.
Justice Strong differentiated between the jurisdictional element (“arising under” federal law), which is a function of the defense the federal officer could raise, and the substantive basis for the criminal prosecution: the state law violation. Offenses removed to federal court therefore continue to be, in Strong’s words, an “alleged crime against the State” and “alleged violation of State laws” rather than offenses against the United States, and therefore necessarily fall outside the president’s pardon power.
Next, consider the structural design of the Constitution: The federal government is one of limited and enumerated powers. The broad “police power” is one reserved to the states. It would make little sense to allow the president to transform a state offense into a federal (and pardonable) one via removal jurisdiction, and thus deprive the states of their traditional police powers. What’s more, aside from federal enclaves of the type covered by the Assimilative Crimes Act, Congress likely lacks the power under the Constitution to enact general laws on purely local issues such as assault and batteries.
There are two related justifications that are usually provided for federal criminal removal. The first is fairness. Federal courts may flatten out local passions against federal agents through a life-tenured Article III judge and a broader jury pool. The second is structural: Federal courts help to ensure that states do not use their local courts to frustrate the lawful operations of the federal government. Neither of these procedural justifications supports removal transforming the substantive nature of the sovereign against whom an offense has been committed.
State Criminal Prosecutions Present a Potential Tool for Policing Federal Misconduct
Federal criminal removal traces back over 200 years. The modern statutory scheme was established in the late 19th century, in response to continued attempts by states to prosecute revenue officers (such as in Tennessee v. Davis). By passing statutes like 28 U.S.C. § 1442(a)(1), Congress sought to balance the legitimate enforcement powers of the state against the need for fairness and the ability of the federal government to act. Nowhere in this carefully wrought balancing does the pardon power play a role.
Were a president to encourage federal officials to break the law on promise of a pardon, state prosecutions—in a forum that ensures fairness for accused federal officers but is outside the scope of the president’s pardon power—would play an important role in restraining federal misconduct. Beyond states’ power to punish assaults, batteries, and murders by federal agents, they also have the ability to pursue public corruption charges against federal officials using state bribery and fraud statutes. This may become increasingly important if the Department of Justice lacks the will (or ability) to prosecute such offenses at the federal level—a possibility that seems increasingly likely under the current administration.
State prosecutions of federal agents may be uncommon and procedurally complex, but their availability in times of excess may stand as another of the Constitution’s many methods of thwarting autocracy, even in the face of the president’s pardon power.
– Aaron S.J. Zelinsky, John Connolly, David Reiser, Published courtesy of Lawfare.
