There is nothing ‘ministerial’ about arresting a former president

Trump FBI
Armed Secret Service agents stand outside an entrance to former President Donald Trump’s Mar-a-Lago estate, Monday, Aug. 8, 2022, in Palm Beach, Fla. Trump said in a lengthy statement that the FBI was conducting a search of his Mar-a-Lago estate and asserted that agents had broken open a safe. (AP Photo/Wilfredo Lee) Wilfredo Lee/AP

There is nothing ‘ministerial’ about arresting a former president

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Hours after a spokesman from Manhattan District Attorney Alvin Bragg’s office confirmed reports that a grand jury had indicted former President Donald Trump, Florida Gov. Ron DeSantis issued a statement saying, “Florida will not assist in an extradition request given the questionable circumstances at issue with this Soros-backed Manhattan prosecutor and his political agenda.”

Democrats quickly attacked DeSantis, noting that Article 4, Section 2, of the United States Constitution reads:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Open and shut case, right? Trump has been charged with a crime in New York, so Florida is constitutionally required to deliver Trump to Manhattan.

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Not so fast. For more than 100 years, it was a lot more complicated.

In 1859, a grand jury in Woodford County, Kentucky, indicted a “free man of color” named Willis Lago with the crime of assisting the escape of a slave. After Lago fled to Ohio, the governor of Kentucky served the governor of Ohio with an extradition request for Lago. The governor of Ohio refused. The governor of Kentucky then sued in federal court to force Ohio to arrest Lago and turn him over to Kentucky.

The case went all the way to the Supreme Court, which decided in 1861 in Kentucky v. Dennison that Ohio did not have to arrest Lago and turn him over to Kentucky. The court looked at the Extradition Clause of 1793, which laid out the procedures for states to request fugitives from other states, reasoning:

The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power.

Dennison was good law for over 125 years. Then an FAA air traffic controller stationed in Puerto Rico was involved in an automobile incident that left a mother and her unborn child dead. The FAA employee, Ronald Calder, was then arrested on homicide charges in Puerto Rico and released on bond. He subsequently fled to his home state of Iowa.

Puerto Rican authorities then notified local authorities in Polk County, Iowa, that Calder was a fugitive wanted on murder charges. Calder then surrendered to Polk County authorities and posted $20,000 bail.

The governor of Puerto Rico then submitted a request for Calder’s extradition. But after Calder’s lawyer asked Iowa Gov. Robert Ray to hold an extradition hearing, the extradition request was denied. Ray then entered into negotiations with Puerto Rico’s governor, seeking to get the charges dropped from homicide to “a more realistic charge.” The Puerto Rico governor refused and then sued in federal court.

In Puerto Rico v. Branstad (Gov. Ray’s successor, Terry Branstad, continued to fight the extradition), the court ended up siding with Puerto Rico, finding that extradition was a “ministerial duty” that did not involve any “discretionary elements of state governance.” Calder was then sent back to Puerto Rico, where the judge did indeed knock the charges down to manslaughter and released Calder on a suspended sentence. Calder then returned to Iowa, where he went back to work for the FAA and was under probation for 15 years.

The bottom line is that existing Extradition Clause jurisprudence is far from settled. For over 125 years, governors had to negotiate the return of fugitives from other states. Now 99.9% of the time, governors are eager to help each other out in fighting crime. But when prosecutions become political — especially prosecutions from prosecutors with an established history of letting many other criminals go — one can understand why a governor would be hesitant.

More importantly, any objective observer looking at the arrest of a former president guarded by the Secret Service would not categorize such an action as “ministerial.”

Just ask the New York Times, which has reported that the “logistics of Mr. Trump’s surrender are complex” and that “the unprecedented arrest of a former commander in chief will be anything but routine.”

“Anything but routine” is just another way of saying “not ministerial.” How and when to expend state law enforcement resources to arrest and transport a former president who is guarded by the Secret Service would require tons of “discretionary elements of state governance.” At a bare minimum, DeSantis would have a very strong case in court.

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In the end, this probably does not matter because it appears Trump is planning on surrendering to New York authorities voluntarily. This was always more likely than extradition anyway. Trump will have tremendous leverage to choreograph his arraignment for maximum political and fundraising advantage.

The Trump show will continue, much to the benefit of Trump, Bragg, and of course, President Joe Biden.

© 2023 Washington Examiner

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