NEW YORK – Ten months before Donald Trump is scheduled to stand trial in his historic New York City criminal case, Manhattan prosecutors are turning the former president’s words against him in a tug of war over precisely where he will be tried.
Trump’s lawyers have spent weeks angling to have the hush money case moved to federal court. The Manhattan district attorney’s office responded Tuesday that the case should remain in the state court where it originated, citing old Trump tweets that they say undermine his lawyers’ jurisdictional challenge.
Trump, a Republican, pleaded not guilty in state court last month to 34 felony counts of falsifying business records related to money paid to his former lawyer, Michael Cohen, for orchestrating hush money payments during the 2016 campaign to bury allegations of extramarital sexual encounters.
Prosecutors allege that Trump’s company, the Trump Organization, falsely logged the Cohen payments as being for a legal retainer that didn’t exist.
Trump, the leading contender for next year’s Republican presidential nomination, is slated to go on trial in state court March 25, 2024, in the heat of the primaries.
Trump’s lawyers argue he can’t be tried in state court because some of the alleged conduct occurred in 2017 while he was president, including checks he purportedly wrote while sitting in the Oval Office. They argue the case belongs in federal court because it “involves important federal questions” including alleged violations of federal election law.
The DA's office, in its response, pointed to tweets from 2018 in which Trump said he was paying Cohen a monthly retainer and that Cohen was being reimbursed for a $130,000 “private agreement” the lawyer made with porn actor Stormy Daniels to keep her from speaking about an alleged affair.
Trump tweeted that the payments had “nothing to do" with his campaign. Prosecutors also cited a statement in which Rudy Giuliani, Trump’s personal lawyer at the time, said the Daniels payment “was made to resolve a personal and false allegation in order to protect” Trump’s family.
Ultimately it will be Manhattan federal judge Alvin Hellerstein who decides whether to seize control of the case or keep it in state court. likely after the two sides duke it out at a hearing on the issue June 27.
Such transfer requests are rarely granted, although Trump’s is unprecedented because he’s the first ex-president charged with a crime. In the meantime, the case will continue in state court.
Matthew Colangelo, a senior counsel to Manhattan DA Alvin Bragg, urged Hellerstein to keep the case as is, arguing in court papers Tuesday that Trump's lawyers had failed to meet a high legal bar.
Trump’s lawyers argue that he must be tried in federal court because, as commander-in-chief, he was a “federal officer.” Colangelo contended that Trump’s legal team hasn't satisfied any of three grounds for moving the case under that standard and questioned whether it would even apply to Trump.
Over the years, he wrote, courts have debated whether the legal definition of “federal officer” applies to a president or only to other members of the government.
Trump’s charges pertained to efforts “to conceal criminal conduct that largely occurred before his inauguration," Colangelo wrote. That includes alleged violations of New York laws regulating record-keeping at private businesses — laws that have no federal equivalent, he added.
Trump’s “alleged criminal conduct had no connection to his official duties and responsibilities" but instead "arose from his unofficial actions relating to his private businesses and pre-election conduct," Colangelo wrote in a 40-page filing.
The Trump legal team's inability to connect his conduct to his official duties negates any potential defense he might invoke, such as presidential immunity, Colangelo wrote.
In addition to Trump and Giuliani’s public statements, prosecutors on Tuesday cited secret grand jury material including unspecified exhibits, a court order and a document obtained by a grand jury subpoena. That evidence was filed under seal.
Manhattan’s state and federal courthouses are just a block apart, but where Trump’s trial is held could impact how it plays out.
The Manhattan DA's office, which conducts most of its business in state court, would still prosecute either way, but Trump could gain an advantage in federal court with a broader and more politically diverse jury pool drawing from the New York City suburbs in addition to heavily Democratic Manhattan.
Manhattan federal prosecutors previously investigated and charged only Cohen, who pleaded guilty to violating federal campaign finance law in connection with the hush money payments and is a key witness in the state case against Trump.
Trump sued Cohen last month, accusing him of “vast reputational harm” for talking publicly about the payments.
Cohen’s lawyer, Lanny Davis, accused Trump of “using and abusing the judicial system as a form of harassment and intimidation” and said the lawsuit wouldn't deter Cohen’s cooperation with prosecutors.