The Quality Of Legal Analysis Is Not Straineth

Law enforcement officials in Palm Beach County, Fla., have actively prepared for the possibility that Manhattan District Attorney Cy Vance could indict former President Trump while he’s at Mar-a-Lago https://t.co/WM3PHkzDnj

— POLITICO (@politico) May 13, 2021

 Usually it's just stupid:

An obscure clause in Florida’s statute on interstate extradition gives Gov. RON DESANTIS the ability to intervene and even investigate whether an indicted “person ought to be surrendered” to law enforcement officials from another state — which means that as Mar-a-Lago prepares to close down for the season and Trump relocates to Bedminster, N.J., it isn’t just the Florida heat he’s leaving behind: He could lose a key piece of political protection.

“The statute leaves room for interpretation that the governor has the power to order a review and potentially not comply with the extradition notice,” says JOE ABRUZZO, clerk of the Circuit Court of Palm Beach County, the official who would be in charge of opening a potential fugitive-at-large case.

One wrinkle to Abruzzo’s potential role in all of this: He is a former close associate of President JOE BIDEN’S younger brother, FRANK. Abruzzo tells Playbook that despite his friendship with the Biden family, “the full extent of the law will be followed and carried out appropriately, without bias.”

If an indictment comes down while Trump is in Bedminster for the summer, this could all play out very differently. New Jersey’s extradition statute is similar to Florida’s, giving the governor the power to investigate an out-of-state warrant. But its governor is Democrat PHIL MURPHY, who is no fan of Trump’s, and would not likely intervene to stop Trump’s extradition. In the event of an indictment, Trump’s lawyers could also negotiate a condition of surrender, which could cut local law enforcement out. An attorney for Trump declined to comment.

Admittedly I'm a bit out of my depth here, as I have no experience with interstate extradition proceedings. But I can offer a few educated guesses about the state of extradition law in the country.

There is, in law, a Uniform Commerical Code.  It's a series of statutes meant to regularize business law so that fundamental practices don't vary widely from state to state.  Don't get paranoid about that, it's really pretty commonsensical.  It's the UCC that, among other things, sets out how a personal check is legitimate (signature, "Pay to the order," a line where the amount is in numerals, a line where it is written in words) that makes it possible for you to send a check from New York to a vendor in California and get the money paid out to the vendor upon presentation.  That's the simplest example I can give you, but at the fundamental level it requires that all 50 states have the same provisions of the UCC in their statutes so your check can be accepted in any other state without headaches that would make such transactions impossible.

Some uniform codes don't work that way; they just make life easier so states don't have to reinvent the wheel 50 times over.  There is a Uniform Family Code, for example.  It worked out most of the issues surrounding child custody and visitation, just to pick out two areas, and most states eventually adopted it because the provisions made sense, and again, it was easier than all 50 legislatures reinventing the wheel 50 times.  None of these things are imposed on the states; they are drafted and offered as reasonable ways to statutorily control matters like custody and visitation.  The states then consider them and adopt them.  Some make it easier to legislate issues like family law; some make it easier for people in the 50 states to do business with each other, or for the states to cooperate with each other.

And yes, the system can be corrupted by groups like ALEC, writing and lobbying for laws related to certain matters, but that's not the issue here.  The point is, many states have uniform, or remarkably similar, laws on matters left to state concern, like family law or probate.  There is a Uniform Probate Code, too; but that doesn't mean every state has adopted it in full, or even in part.

Which brings me to criminal extradition.

The Politico article contains a glaring contradiction:  the provision in the Florida statute allowing the governor to weigh in on criminal extradition requests from another state is "obscure;" and yet New Jersey has basically the same provision.  Whenever a news article calls a statutory provision "obscure," you need to reach for the salt, because "obscure" usually means "not the popular understanding of the law."  Set that aside, and you notice that the provisions of the laws of Florida and New Jersey have the same provision:

Governor may investigate case.—When a demand shall be made upon the Governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Department of Legal Affairs or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him or her the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.

That's Florida's statute; here's New Jersey's:

 When a demand shall be made upon the governor of this state by the executive  authority of another state for the surrender of a person so charged with crime,  the governor may call upon the attorney general or any prosecuting officer in  this state to investigate or assist in investigating the demand, and to report  to him the situation and circumstances of the person so demanded, and whether  he ought to be surrendered. 

Florida calls Part I of Title XLVII, chapter 941, from which that statute above is drawn, "Uniform Interstate Extradition."  New Jersey says New Jersey Code Title 2A, section 2A:160, "may be cited as the 'uniform criminal extradition law'."  I'm pretty certain Florida and New Jersey are working off of a uniform extradition law presented for adoption by all 50 states at some time in the past, especially since the two sections quoted here are identical except for the change in names of agencies charged with investigating extradition requests in the respective states.

So it's not an "obscure" provision, it's a uniform one. (I find, having written this, that there is a “Uniform Criminal Extradition Act,” which only Missouri and South Carolina have not enacted.)

It's also not a secret gubernatorial power Gov. DeSantis can wield to protect Trump from criminal prosecution in New York.  The statute provides that the governor may (not must) ask for an investigation to determine whether or not the extradition should be allowed.  That is not the same thing as the governor may protect the criminal defendant in perpetuity as long as he/she stays within the state:

Trump might skip Bedminster and hide out in Palm Beach if he fears an indictment by a NYC grand jury run by Cy Vance. Gov. Phil Murphy of NJ would readily extradite Mr. Trump on Gov. Andrew Cuomo's demand. Not so sure about Gov. Ron DeSantis of FLA. He'd be more likely to defy. https://t.co/EwEdyT3a2M

— Laurence Tribe (@tribelaw) May 13, 2021

As much as I admire Laurence Tribe on matters of constitutional law, I think he’s off the reservation on this one.  The Constitution (Art. II, Sec. 2, Clause 2), requires states extradite indicted criminals to stand trial; Federal law sets out (broadly) the procedure; and court rulings have established four grounds upon which extradition may be denied.  None of them are going to allow Gov. DeSantis to refuse the extradition warrant.  Even if DeSantis defied the extradition request, New York would have standing to seek enforcement of its order in federal court, so in the end Trump would only be stuck in Florida, not off scot free. DeSantis might take a brave stance for the sake of his supporters, but it won’t keep Trump out of NY courts. 

Whether Trump is in Florida or New Jersey when, if, an indictment comes down, it won't really make any difference.  In fact, the likeliest result is that Trump works out an agreement after any indictment to live where he wishes between the indictment and the time of the trial.

The kind of armchair lawyering Politico is engaging in is really why you shouldn't try this at home.