Donald Trump’s next move in his New York state hush money prosecution is … trying to move the case to federal court? Yes, really. Here’s what that means and why it might not succeed.
People charged with crimes in state court can “remove” their cases to federal court if the case relates to their actions as a “federal officer” under “color of” their office. In attempting to meet that standard, Trump’s legal team argued Thursday that “there is a clear nexus between the payments to Mr. Cohen and former President Trump’s position as President of the United States.”
The “payments” to which Trump refers, of course, were reimbursement for former Trump lawyer Michael Cohen’s hush money payment to porn actress Stormy Daniels in the lead-up to the 2016 election. Cohen and Daniels say the payment was to keep her quiet about an affair she had with Trump, which the former president has denied.
Trump is charged in New York state court with falsifying business records in repaying Cohen. Lawyers for the former president and 2024 Republican candidate argued in his removal filing that Cohen “was only hired as a direct result of President Trump’s role as President of the United States and his obligations under the Constitution, and in order to separate his business affairs from his public duties.”
Now, it’s true that reimbursing a personal hush money payment made before an election is separate from the duties of a U.S. president. But that distinction could be fatal to Trump’s motion. That is, because the alleged criminal conduct related to a personal, not presidential, matter, it could fairly be said that Trump’s alleged conduct wasn’t done under “color of” his office. And if the point of Trump’s removal attempt is to delay even if he’s unsuccessful, he shouldn’t count on that, either. That’s because, under the relevant federal law, filing a removal notice in a criminal case “shall not prevent the State court in which such prosecution is pending from proceeding further.” At any rate, we may learn quickly whether Trump’s removal effort succeeds, as the law also states that the federal court shall examine it “promptly.”
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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