Legal Commentary

Cheney and Gonzales Indicted...by Texas State Court

By Professor University of Miami School of Law

It seems that a South Texas grand jury has indicted Messers Cheney and Gonzales.

CNN, Cheney, Gonzales indicted for alleged prisoner abuse: Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers, Willacy County, Texas, District Attorney Juan Angel Guerra told CNN Tuesday.

The indictment stems from Cheney’s investment in the Vanguard Group — an investment management company that reportedly has interests in the prison companies in charge of the detention centers, according to The Associated Press. It also charges Gonzales halted an investigation into abuse at the detention centers while he was attorney general.

You might think there are some federalism issues here. And there are. You might think there are some qualified/absolute immunity issues here, and there are. (Cf. In re Neagle, 135 U.S. 1 (1890) (creating federal officer immunity defense.)) But what you might not know is that there’s a federal removal statute that deals with state criminal prosecutions, 28 U.S.C. § 1442(a)(1):

§ 1442. Federal officers or agencies sued or prosecuted

(a) A civil action or criminal prosecution commenced in a State court against 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, sued in an official or individual capacity for 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.

So step one will be a removal to the federal District Court.

Incidentally, the Supreme Court approved the constitutionality of criminal removal jurisdiction in Tennessee v. Davis, 100 U.S. 257 (1880), and discussed the modern statute in Mesa v. California, 489 U.S. 121 (1989), where the court concluded that “Federal officer removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal defense.” (In other words, the defendant must be prepared to argue that acts underlying the charges were performed pursuant to his federal authority.)

Note that if the case is removed, state law continues to govern the substantive rules pertaining to the offense — but federal law supplies the procedural rules.

Full post as published by Discourse.net on November 18, 2008 (boomark / email).