Preemption Procedure: A Comment on the Shugerman-Kovarsky Debate in People v. Trump

Is People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct.) preempted? This question has generated much debate, but is unlikely derail the ongoing state prosecution, at least procedurally.

The defendant is charged with 34 counts of falsifying business records. The offense is raised to the level of a felony, the indictment charges, because the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The issue is that underlying facts may involve a federal election offense. Prof. Jed Shugerman has pointed out that the federal election law has an express preemption provision, and New York State election law has a separate provision acknowledging the primacy of federal law. Accordingly, there is a potential preemption problem which, according to Prof. Shugerman, might mean that “the case is headed to federal court for a year.” Prof. Lee Kovarsky responded with a persuasive argument that states can sometimes use even preempted federal offenses for their own purposes. No one questions, for example, that a New York attorney convicted of an offense within exclusive federal jurisdiction could nevertheless be disbarred. Prof. Kovarsky writes: “To my knowledge, in no case has a court even suggested that a federal crime can't be an element of a different state offense just because the federal crime falls within the scope of preemptive federal authority.” This seems a hard question. If I were in the NY Co. DA's Office, I would strive mightily to elide it and find safe, state crime.

Nevertheless, whatever the ultimate merits, I do not see how the defendant gets an injunction. True, earlier proceedings related to this very matter, namely, a New York grand jury subpoena, were subject to a prolonged stay as the Supreme Court considered the case. On the merits, the Court ultimately allowed the subpoena. Critically, the stay was based on a circumstance no longer present: Trump was then President. The Court explained: “The Supremacy Clause prohibits state judges and prosecutors from interfering with a President's official duties. . . . federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here.” Trump v. Vance, 140 S. Ct. 2412, 2428–29 (2020). Vance is not precedent for an injunction to protect a private citizen. There was also the stay of enforcement of a House of Representatives subpoena. But there, the question was not preemption, but “whether the subpoenas exceed the authority of the House under the Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029 (2020).

Instead, the case now seemingly presents an ordinary claim of preemption in a state prosecution of a private citizen. In that context, 28 U.S.C. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

The possibility that a state prosecution is preempted, standing alone, is not a ticket to federal court:

[A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court.

Bess v. Spitzer, 459 F. Supp. 2d 191, 201–02 (E.D.N.Y. 2006), as amended (Jan. 30, 2007) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149–50 (1988)). 

Another judicially recognized exception exists where the defendant proves that a prosecution was “brought in bad faith or is only one of a series of repeated prosecutions,” or that there is otherwise “irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith.” Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir. 1999) (citations omitted). See also Jordan v. Bailey, 570 F. App'x 42, 44 (2d Cir. 2014). “Bad faith” in in this context means “without hope of obtaining a valid conviction.” Perez v. Ledesma, 401 U.S. 82, 85 (1971).

No exception seems to exist. There appears to be no act of Congress providing for federal judicial intervention, and no past or present litigation of these facts for a federal court to protect. Although there is debate about what is required to convict of the offense of falsifying business records, and even more mystery about what the People plan to prove, there is no indication that the prosecution has no chance of success, or is the latest in a series of failed, harassing prosecutions. Accordingly, any preemption issue should be addressed “by the state court.” State rulings would be "subject, of course, to review by . . . [the Supreme] Court or, in a proper case, on federal habeas corpus." 401 U.S. at 85.

One circumstance which neither constitutes bad faith nor tends to support a separate defense is the selective prosecution argument which may be in the offing. Federal constitutional law precedents allow selection of prominent individuals for prosecution. As Wesley Snipes learned to his dismay in a tax case, “[s]ince the government lacks the means to investigate and prosecute every suspected violation of the tax laws, it makes good sense to prosecute those who will receive, or are likely to receive, the attention of the media.” United States v. Snipes, No. 5:06-CR-22-OC-10GRJ, 2007 WL 2572198, at *3 (M.D. Fla. Sept. 5, 2007) (quoting United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978)). See also United States v. Edenfield, 995 F.2d 197, 200 (11th Cir. 1993) (“For law enforcement officers to choose to investigate prominent offenders is nothing unusual or evil.”)

The limited New York authority on prosecuting celebrities I could find is to the same effect: “assuming the decision to prosecute was based on the fact that the defendants were prominent and newsworthy, this is also not an impermissible basis for selection . . . Publication of the proceedings may enhance the deterrent effect of the prosecution and maintain public faith in the precept that [others] are not above the law.” People v. DiLorenzo, 153 Misc. 2d 1021, 1029–30, 585 N.Y.S.2d 670, 675 (Crim. Ct. Bx. Co.1992) (citing People v. Barnwell, 143 Misc.2d 922, 541 N.Y.S.2d 664 (Crim. Ct. N.Y. Co. 1989)). There is also one lower court case more or less endorsing the the proposition that it is permissible to target individuals for enforcement because they are suspected of other crimes. See People v. Mantel, 88 Misc. 2d 439, 443, 388 N.Y.S.2d 565, 569 (Crim. Ct. N.Y. Co. 1976) (citing United States v. Sacco, 428 F.2d 264, 271 (9th Cir. 1970) (“selection of this defendant for intensive investigation was based on his suspected role in organized crime”) Stuart Green has written thoughtfully about whether prosecuting celebrities and the prominent is consistent with criminal law principles, but the doctrine seems to allow it. Stuart P. Green, Uncovering the Cover-Up Crimes, 42 Am. Crim. L. Rev. 9, 42 (2005).

If the defendant could show that other, similarly-situated offenders who were members of different political parties were not prosecuted by the same office, then that would raise a substantial issue. United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997) (citing, inter alia, United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). But such claims have historically proved difficult to establish. United States v. Lazzaro, No. 21-CR-0173 (PJS/DTS), 2022 WL 16948157 (D. Minn. Nov. 15, 2022); United States v. Woods, 319 F. Supp. 3d 1124, 1141 (W.D. Ark. 2018), aff'd sub nom. United States v. Paris, 954 F.3d 1069 (8th Cir. 2020), and aff'd, 978 F.3d 554 (8th Cir. 2020); United States v. Young, 231 F. Supp. 3d 33, 43 (M.D. La. 2017); United States v. Cameron, 658 F. Supp. 2d 241, 243 (D. Me. 2009).