Today Judge Merchan issued a sentence against President-Elect Trump, and presumably created a final appealable judgment. But could he?
President Trump has tried to remove this case to federal court under the federal officer removal statute. I wrote about the statute here, and Tillman and I explained why the case could not be removed here. The District Court denied Trump’s motion to remand the case to state court. But unlike with the usual federal question removal statute, where there is no appeal, the federal officer removal statute permits an appeal. This case is currently on appeal to the Second Circuit (Docket No. 24-2299). Judge Merchan noted as much in his decision:
As for the alleged misrepresentations by DANY in connection with the Removal proceedings, this Court is not aware of such misrepresentations. Thus far, Defendant’s efforts to remove the case to federal jurisdiction have been rejected. What remains is Defendant’s appeal of Judge Hellerstein’s denial of his motion for leave to move for removal a second time.
Given this posture, could Judge Merchan issue a final judgment?
28 U.S.C. § 1455(b)(3) provides:
(3)The filing of a notice of removal of a criminal prosecution shall not 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.
It seems that a final judgment cannot be entered until the case is remanded back to state court.
As I understand things, the case has not yet been remanded back to the state court. Can a final judgment of conviction be issued before the case is remanded? I don’t know. But this issue may warrant some further thought.
