Tuesday, May 30, 2023 | 5:37 p.m.
NEW YORK — Ten months before Donald Trump is scheduled to stand trial in his historic New York City criminal case, Manhattan prosecutors are in a tug of war with the former president's legal team over precisely where he will be tried.
Trump’s lawyers are angling to have the hush-money case moved to federal court while the Manhattan district attorney’s office, in court papers Tuesday, says it should remain in the state court where it originated.
Trump, a Republican, has denied wrongdoing and pleaded not guilty in state court last month to 34 felony counts of falsifying business records and is slated to go on trial in state court starting on March 25, 2024, in the heat of next year’s presidential primaries.
Ultimately, it'll be Alvin Hellerstein, a federal judge in Manhattan, who decides whether to seize control of the Trump case or keep it in state court — likely after Manhattan prosecutors and Trump's lawyers duke it out at a hearing on the issue scheduled for June 27.
Such transfer requests are rarely granted, although Trump’s request is unprecedented because he’s the first former president ever charged with a crime. While the jurisdictional fight plays out, the case will proceed in state court and all pretrial deadlines will remain in effect.
Matthew Colangelo, a senior counsel to Manhattan District Attorney Alvin Bragg, urged Hellerstein to keep the case as is, arguing in court papers Tuesday that Trump's lawyers had failed to meet the high legal bar for moving the case from state court to federal court.
Trump's lawyers first asked the federal court to wrest the case in early May, arguing that Trump can’t be tried in state court because his alleged conduct occurred while he was president. The case, they argued, “involves important federal questions” including alleged violations of federal election law that are best suited for a federal court.
Colangelo countered that the charges against Trump pertained to efforts “to conceal criminal conduct that largely occurred before his inauguration." Those efforts included alleged violations of New York's laws regulating record-keeping at private businesses — laws that have no federal equivalent, Colangelo said.
Trump’s lawyers argued that the case should be tried in federal court because as president he was a “federal officer.” Colangelo contended they haven'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 “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 the Manhattan D.A.'s 40-page filing.
The Trump legal team's inability to connect Trump’s conduct to his official duties negates any potential defense he might invoke, such as official immunity as president, Colangelo wrote.
Manhattan’s state and federal courthouses are just a block apart, but where Trump’s trial is held could impact how it plays out, though some fundamentals would stay the same.
The Manhattan district attorney’s office, which conducts most of its business in state court, would still prosecute either way. Trump could gain an advantage, though, if the case were moved to federal court. There, the jury pool is broader and more politically diverse than in state court, which draws solely from heavily blue Manhattan.
Trump's criminal charges are related to payments that his company made to his former lawyer, Michael Cohen. Prosecutors say those payments, most of which took place in 2017, while Trump was president, were intended to reimburse and compensate Cohen for orchestrating hush money payments during the 2016 campaign to bury allegations of extramarital sexual encounters.
Federal prosecutors in Manhattan previously investigated and only charged Cohen, who pleaded guilty to violating federal campaign finance law in connection with the hush money payments. Cohen 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 hush-money payments at the heart of the criminal case.
Cohen’s lawyer, Lanny Davis, said Trump was “using and abusing the judicial system as a form of harassment and intimidation against Michael Cohen,” and that lawsuit wouldn't deter Cohen’s cooperation with prosecutors.
