Is it “presidential” to falsify business records in connection with a porn star hush money scheme? The seemingly absurd question is one way to look at the fight brewing over Donald Trump’s attempt to move his New York state prosecution to federal court.
That’s because for the former president to succeed, he needs to show that he was a federal officer who now faces charges for conduct arising “under color of” his office, and that he has a colorable federal defense. Manhattan District Attorney Alvin Bragg basically says there’s no way that Trump can win removal from state court, because the case involves a personal matter, even if Trump was president when he reimbursed his former fixer, Michael Cohen, for paying Stormy Daniels hush money ahead of the 2016 presidential election. The adult film star alleges she had sex with Trump, which he has denied.
As Bragg put it in his filing Tuesday, Trump’s alleged conduct “had no connection to his official duties and responsibilities as President, but instead arose from his unofficial actions relating to his private businesses and pre-election conduct.” The Democratic prosecutor cites Trump’s own tweets to that effect in 2018, in which the then-president referred to Daniels’ nondisclosure agreement that she signed for $130,000 as a “private contract” and a “private agreement.”
Bragg also cites the words of former Trump personal lawyer Rudy Giuliani in, among other places, an appearance with Sean Hannity on Fox News in 2018. Bragg’s motion quotes Giuliani as saying: “When I heard Cohen’s retainer of $35,000 when he was doing no work for the president, I said that’s how he’s repaying — that’s how he’s repaying it with a little profit and a little margin for paying taxes for Michael.” (Cohen was repaid by Trump in $35,000 installments, which Bragg alleges were falsely characterized as payments for legal services rendered pursuant to a retainer agreement.)
The prosecution also quotes Giuliani telling Politico that the matter was “personal” and telling ABC News that “it was entirely reimbursed out of personal funds.”
Even if Giuliani’s words alone don’t defeat Trump’s attempt to change courts, they don’t seem to help the former president’s case.
Another vaunted GOP figure making an appearance in Bragg’s filing is the late Justice Antonin Scalia. Bragg cites a Scalia memo from the 1970s, when the future justice was an executive branch lawyer, that argues the president isn’t even considered an “officer” under the Constitution. That, of course, would lead to the conclusion that Trump can’t take advantage of federal officer removal here.
Notably, this venue fight doesn’t stop the state case from moving forward, so Trump doesn’t win a delay simply by trying. The trial is currently set for March, just months before Trump hopes to win back the White House after losing to Joe Biden in 2020. Trump has pleaded not guilty to 34 felony counts of falsifying business records. Trump also faces potential charges in Justice Department special counsel Jack Smith’s probes into his handling of classified material and his efforts to overturn the 2020 election, including Jan. 6, as well as in Fulton County District Attorney Fani Willis’ investigation of possible 2020 election interference in Georgia. If Trump is charged in Georgia and tries to move that case to federal court as well, the resolution of his attempt to do so in his hush money case could provide some relevant precedent. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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