Trump’s Lawyer in New York Hush-Money Case Wants to Move Trial to Federal Court
(Bloomberg) -- Former President Donald Trump formally asked to move the criminal case brought against him by Manhattan District Attorney Alvin Bragg to federal from state court.
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Trump said the 34-count case filed by Bragg in March needed to be heard in federal court in part because it raised issues unique to a former US president. For instance, he argued that Michael Cohen, who is expected to be a key witness for Bragg, was hired as his personal lawyer only because Trump’s election required him to separate his business affairs from his public duties.
“There is a clear nexus between the payments to Mr. Cohen and former President Trump’s position as President of the United States,” Trump’s lawyers wrote. Cohen allegedly made the hush-money payments at the center of the case on Trump’s behalf and was reimbursed by the then-president, making the matter more suitable for a federal court, the lawyers argued.
Trump filed his motion for removal Thursday afternoon in Manhattan federal court. His lawyer had said he would seek to transfer the case at an earlier hearing in New York state court before Justice Juan Merchan.
“We are reviewing the notice of removal and will file an appropriate response in court,” said Emily Tuttle, a spokeswoman for Bragg. Nicholas Biase, a spokesman for Manhattan US Attorney Damian Williams declined to comment.
A state grand jury indicted Trump in March on 34 counts of falsifying business records for directing payments be made to Stormy Daniels, an adult-film actor, and Karen McDougal, a former Playboy model. Trump has pleaded not guilty to the charges and denied the encounters. Cohen allegedly made the payments at Trump’s direction just before the 2016 election and was reimbursed after his boss took office.
In his Thursday motion, Trump also seized on what many have regarded as a weakness in Bragg’s case — that it was a state prosecution based in part on the idea that Trump violated federal campaign finance law. He also claimed the “underlying conduct,” meaning the reimbursements, were part of his duties as president.
“There has never been a prosecution under New York State law based on an alleged violation of election law pertaining to a federal election,” Trump’s lawyers said. “And there are serious federal preemption issues with such a prosecution.”
When Trump was indicted in late March, he posted on his social media platform that Merchan “HATES ME” and called the judge’s wife “anti-Trump.” Trump has also accused Bragg, a Democrat, of politicizing the prosecution and is fighting the elected DA’s move to impose restrictions on how much the ex-president can publicly discuss evidence against him.
If Trump succeeds in moving the state case to Manhattan federal court, he wouldn’t rid himself of Bragg. But the charges, filed under state law, might end up being jointly handled by the US attorney’s office that originally investigated the matter - and which declined to charge Trump federally after securing a guilty plea from Cohen, his former fixer.
Trump’s legal team may be seeking a tactical advantage by catching state prosecutors off guard. And Blanche, who is a former federal prosecutor in Manhattan, may also be playing for a home-court advantage, in addition to replacing Merchan with a federal judge.
Under federal law in some instances, when a case is initially brought in state court, a defendant can seek to have a case “removed” to federal court if the criminal charges could have been brought there instead.
But Rebecca Roiphe, a former state and federal prosecutor who is now a professor at New York Law School, said the chance of Trump winning such a request to move the case from state to federal court was “very unlikely.”
“The removal statute applies in a narrow set of circumstances, none of which apply to Trump’s prosecution,” Roiphe said. “It seems like he is trying to make a selective prosecution argument that the state officials are biased against him.”
Trump Weighs Bid to Shift NY Criminal Case to Staten Island
At a hearing Thursday, Merchan declined to rule on Bragg’s request for an order limiting what Trump can say publicly ahead of his trial, saying he wants the two sides to work out an agreement on conditions for a so-called protective order.
Prior to the current case, Bragg’s office took up an investigation of Trump and prosecuted his longtime former chief financial officer Allen Weisselberg and two of the former president’s companies for tax evasion, obtaining convictions of all three.
(Updates with formal filing of removal motion.)
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