“Good Cause” Means New, Uncontrollable Grounds Plus Diligence: Second Circuit Clarifies § 1455(b)(1) and Reopens the Door to Post‑Trial Federal Officer Removal in New York v. Trump

Introduction

This Second Circuit decision addresses whether, and on what terms, a former federal officer can remove a state criminal prosecution to federal court after trial based on an intervening Supreme Court ruling about presidential immunity. In March 2023, a New York grand jury indicted Donald J. Trump on 34 counts of falsifying business records arising from reimbursements for a 2016 hush‑money payment. After an initial, timely removal attempt was remanded and later abandoned on appeal, Trump was tried and convicted in state court. Before sentencing, the Supreme Court decided Trump v. United States (2024), recognizing presidential immunity principles including an evidentiary bar on the use of official acts.

Trump then sought leave to file a second, admittedly untimely notice of removal under the federal officer removal statute (28 U.S.C. § 1442(a)(1)) and the criminal‑removal procedure (28 U.S.C. § 1455(b)(1)), arguing that the state’s case had become one “relating to” acts under color of office by virtue of the trial’s use of evidence of official presidential acts. The district court denied leave, holding that “good cause” for late filing was not shown and invoking the Rooker‑Feldman doctrine to disclaim jurisdiction over state‑trial issues. On appeal, the Second Circuit vacated and remanded, clarifying the “good cause” standard under § 1455(b)(1), identifying legal errors, and directing the district court to consider whether the prosecution now “relates to” official acts, whether a colorable federal defense exists, whether removal is even available post‑judgment, and whether Trump acted diligently.

Summary of the Opinion

Non‑mootness: The appeal was not moot despite sentencing and a state judgment of conviction; it was not “impossible” for a court to provide effectual relief because the availability of post‑trial removal remains an open merits question.
Rooker‑Feldman: The district court erred in invoking the Rooker‑Feldman doctrine; it does not bar removal jurisdiction under §§ 1442 and 1455.
Defining “good cause” under § 1455(b)(1): The Second Circuit held that good cause to file an untimely removal notice requires (i) circumstances outside the movant’s control—such as new grounds for removal that could not reasonably have been raised earlier—and (ii) reasonable diligence without undue delay. The standard is flexible but anchored in diligence.
Remand instructions: The district court must consider whether evidence introduced at trial related to immunized “official acts” under Trump v. United States and, if so, whether that use transformed the prosecution into one “for or relating to” acts under color of office. The court must also address whether a colorable federal defense exists (including presidential immunity or FECA preemption), whether Trump acted diligently, and whether removal is legally available post‑trial and post‑judgment.
No merits outcome: The panel expressed no view on how the district court should ultimately rule.

Analysis

Precedents Cited and Their Influence

Watson v. Philip Morris Cos. (2007): Underscores the federal officer removal statute’s purpose—to protect federal operations from state interference when officers act under color of office. It frames the protective policy backdrop for § 1442(a)(1).
Cuomo v. Crane Co. (2d Cir. 2014) and In re MTBE (2d Cir. 2007): Establish the twin background principles the court balances: federal officer removal jurisdiction is not narrow, but removal procedures are strictly construed and doubts resolved against removability. These principles shape how the court approaches the “good cause” exception in § 1455(b)(1).
Trump v. United States (2024): Central to the appellant’s theory. The Supreme Court recognized absolute immunity for the President’s core constitutional powers, presumptive immunity for acts within the outer perimeter of official responsibility, and a critical evidentiary rule: even in a case alleging only unofficial conduct, prosecutors cannot introduce evidence of “the President’s immune conduct.” This evidentiary immunity is the purported “new ground” arguably outside the movant’s control that could satisfy “good cause.”
Willingham v. Morgan (1969), Mesa v. California (1989), Isaacson v. Dow Chemical (2d Cir. 2008): These cases supply the “color of office” causation framework and the requirement of a colorable federal defense in § 1442 removals. They inform whether a prosecution “relates to” acts under color of office and whether an immunity/preemption theory is a colorable defense.
2011 Removal Clarification Act and post‑2011 cases (Agyin v. Razmzan; State ex rel. Tong v. Exxon Mobil Corp.): The statute now covers cases “for or relating to” acts under color of federal office. Although Congress broadened removability, the Second Circuit has not discarded the causal‑nexus concept. The decision acknowledges a circuit split on how broadly to read “relating to,” foreshadowing the district court’s on‑remand analysis.
Good‑cause analogs: Parker v. Columbia Pictures (Rule 16(b)), United States v. Kopp (Rule 12), Alexander v. Saul (FRAP 4), and United States v. Kelly (Rule 12(c)(3) advisory note). These authorities converge on a throughline: good cause hinges on diligence and circumstances not within the movant’s control; strategic delay does not suffice; the standard is flexible but disciplined.
Mootness line: Already v. Nike; Knox v. SEIU; Chafin v. Chafin; MOAC Mall; Chevron v. Donziger; Doe v. McDonald. Together, they support the panel’s conclusion that the case is not moot where effectual relief remains plausible and disputes about the availability of that relief go to the merits, not jurisdiction.
Rooker‑Feldman: Exxon Mobil v. Saudi Basic Industries; Butcher v. Wendt. These decisions cabin Rooker‑Feldman to a narrow range of cases and confirm it does not strip district courts of jurisdiction in properly removed actions.
Appellate remand discipline: Ibeto Petrochemical; D’Alto; Niagara‑Wheatfield; Farricielli; Fulton v. Goord. These guide the court’s decision to vacate and remand where a district court failed to consider pertinent factors central to the discretionary decision.

Legal Reasoning

The panel proceeds in three logical steps: jurisdiction (mootness), the governing standard (“good cause”), and the application framework on remand.

First, on mootness, the court rejects the State’s contention that sentencing ended the case for removal purposes. It emphasizes the doctrinal distinction between jurisdictional mootness and merits: whether removal is legally available post‑judgment is a merits question, not a jurisdictional bar. Because effectual relief remains plausible, the controversy is live.

Second, the court defines “good cause” for late criminal removal under § 1455(b)(1), borrowing from established “good cause” doctrines in the federal rules. The movant must show:

Externality: Circumstances outside the movant’s control—like an intervening Supreme Court decision creating new grounds for removal—that could not reasonably have been raised within the 30‑day default deadline or before trial; and
Diligence: Reasonable promptness without undue delay once those new grounds arose.

The court underscores that “good cause” is flexible and context‑sensitive, but it rejects purely strategic recalculations or changes of heart as sufficient. This calibrated standard respects the strict construction of removal procedures while recognizing the broad protective purpose of federal officer removal.

Third, the court identifies unresolved, material questions the district court must address to meaningfully exercise its discretion:

Relating‑to element: Did evidence introduced at trial (e.g., statements about DOJ/FEC matters involving the Attorney General, Oval Office conversations with the Communications Director, official 2018 presidential statements on matters of public concern) constitute “official acts” that Trump v. United States renders evidentially immune? If yes, did the use of such evidence transform the prosecution into one “for or relating to” acts under color of federal office under § 1442(a)(1)?
Colorable federal defense: If the case “relates to” official acts, does the presidential immunity recognized in Trump v. United States or a revived FECA preemption theory qualify as a colorable federal defense for § 1442(a)(1) purposes?
Diligence: Was the timing of the second removal effort—roughly two months after Trump v. United States and following efforts to secure relief in state court—consistent with the diligence required for “good cause,” or was it undue delay?
Post‑trial removability: Does § 1455(b)(1)’s “except that for good cause shown” proviso permit removal after trial and judgment when new grounds arise late, or is removal categorically unavailable after trial? The panel flags the question and leaves it for the district court in the first instance.

The court also corrects a legal error: Rooker‑Feldman does not bar a district court’s consideration of a properly removed case; thus, it cannot serve as an independent ground to deny leave to file an untimely removal notice.

Impact

This opinion delivers a significant procedural clarification with immediate and longer‑term effects:

Clarified “good cause” standard in criminal removals: The Second Circuit’s two‑pronged definition—externality plus diligence—will guide district courts assessing untimely § 1455(b)(1) removal in criminal cases. Defendants cannot rely on mere strategic reconsiderations; they must identify truly new, uncontrollable developments and act promptly.
Potential expansion of federal forum access when official‑acts evidence is used: The decision directs attention to an underexplored interaction between Trump v. United States (evidentiary immunity for presidential official acts) and the “relating to” language in § 1442(a)(1). If trial use of official‑acts evidence can transform a case into one “relating to” the presidency, that opens a possible route to federal court even when the charged conduct is otherwise “unofficial.”
Unresolved post‑judgment removal: By declining to decide whether criminal removal is legally available after trial/sentencing, the panel preserves a live question with large implications for federalism, comity, and the finality of state criminal judgments. District courts now must grapple with statutory text (“at any time before trial” coupled with a good‑cause proviso) to determine whether late‑arising grounds can justify post‑trial removal.
Incentives for prompt motion practice after landmark rulings: Practitioners should move swiftly when intervening Supreme Court decisions or material shifts in a prosecution’s theory create new federal officer removal grounds. Delay—even for parallel state‑court efforts—will be scrutinized.
Doctrinal cross‑currents: The opinion carefully balances the broad purposes of federal officer removal with the Supreme Court’s repeated insistence on strict adherence to removal procedures. That balance will influence how lower courts treat close calls on timing and the breadth of “relating to.”

Complex Concepts Simplified

Federal officer removal (28 U.S.C. § 1442(a)(1)): Allows federal officers (current or former) to transfer certain state cases to federal court when the case is “for or relating to” acts performed under color of federal office and the defendant asserts a colorable federal defense.
Colorable federal defense: A plausible defense arising under federal law that is not frivolous—e.g., presidential immunity as articulated in Trump v. United States, or federal preemption under FECA, if those defenses could affect the prosecution.
“Relating to” acts under color of office: After 2011, the statute covers a broader set of cases “related to” official conduct, not just those caused by or directly based on such acts. Courts still look for a causal or meaningful connection, and circuits diverge on how broad “relating to” is.
Good cause for late criminal removal (28 U.S.C. § 1455(b)(1)): The Second Circuit now requires two showings: (i) new grounds outside the defendant’s control that could not reasonably have been raised earlier; and (ii) prompt, diligent action once those grounds arose.
Presidential evidentiary immunity (Trump v. United States): Even when a case charges only unofficial conduct, prosecutors may not introduce evidence of the President’s “immune” official acts. The central question here is whether using such evidence makes the case one “relating to” official acts, enabling federal officer removal.
Rooker‑Feldman doctrine: A narrow rule preventing federal district courts from acting as appellate reviewers of final state judgments. It does not block jurisdiction conferred by a valid removal statute.
Mootness vs. merits: A case is moot only if a court cannot grant any effectual relief. Arguments that a particular remedy is legally unavailable usually go to the merits, not mootness.

Key Issues for the District Court on Remand

Does the trial record contain evidence of immunized “official acts” (e.g., internal DOJ/Attorney General interactions, Oval Office communications by a senior White House aide on matters of public concern, official presidential statements) within the meaning of Trump v. United States?
If so, does their admission make the case one “relating to” acts under color of the presidency, satisfying § 1442(a)(1)’s federal officer nexus?
What is the asserted colorable federal defense—evidentiary presidential immunity, broader presidential immunity, FECA preemption—and is it sufficiently plausible?
Did Trump act with reasonable diligence after Trump v. United States issued, or was the two‑month interval (amid parallel state‑court motions and campaign obligations) undue delay?
Is removal legally available post‑trial and post‑judgment under § 1455(b)(1)’s “except that for good cause shown” clause, notwithstanding the statute’s default timing (“not later than 30 days after arraignment” or “before trial”)?

Practical Takeaways

Practitioners seeking late criminal removal must do more than point to a new decision; they must tie it to previously unavailable removal grounds and move promptly.
When presidential or high‑level official “acts” become evidence in a state prosecution—even if the charged conduct is private—defense counsel should evaluate whether § 1442(a)(1) removal is now available in light of Trump v. United States.
District courts should avoid Rooker‑Feldman short‑cuts in removal cases; the correct inquiry is removability under §§ 1442 and 1455.
Expect greater scrutiny of the trial record in “federal officer” cases to determine whether evidence usage, rather than the underlying charged conduct alone, creates the “relating to” nexus.
Open questions remain, particularly whether Congress authorized post‑trial/post‑judgment removal on a good‑cause showing; careful textual and structural analysis of § 1455(b)(1) will be decisive.

Conclusion

New York v. Trump establishes a clear, transferable rule for “good cause” under § 1455(b)(1): the movant must show both that new, uncontrollable circumstances created removal grounds that were previously unavailable and that the movant acted with diligence. The panel also corrects the district court’s reliance on Rooker‑Feldman and preserves a live path for removal by recognizing that the interaction between Trump v. United States’ evidentiary immunity and § 1442(a)(1)’s “relating to” language could render a state prosecution removable even when the charged conduct is unofficial, if official‑acts evidence is used.

While the court declines to decide whether removal can occur after trial and sentencing, it vacates and remands because the district court did not consider pivotal factors: whether official‑acts evidence was used, whether any federal defenses are colorable, whether the defendant acted diligently, and whether post‑trial removal is legally available at all. The opinion thus both refines the law of criminal removal’s timing and signposts unresolved questions at the intersection of federal officer protection, presidential immunity, and state criminal prosecutions—questions that will shape removal practice and federal‑state comity in high‑stakes cases going forward.