A Good Day in Court for the Manhattan DA

Tuesday, as we discussed in The Week Ahead edition of the newsletter on Sunday, was all set to be a big day. And it was.

• The Supreme Court declined to breathe life into the Republican’s anti-democratic independent state legislature theory, deciding Moore v. Harper 6-3 in a manner that clarified state legislatures can’t shut down the popular vote. That ends Trump’s ability to use some of the scams he tried in 2020 to retake the White House even if he loses the vote in 2024. That’s a good result for avoiding the most immediate threat to democracy, even though there is some concern the justices left the door open for a future resurgence of the theory. No surprises here: Alito, Thomas, and Gorsuch were the dissenters.

• Walt Nauta was a no-show at his arraignment in Miami today. His out-of-town lawyer told the judge he hadn’t been able to get a Florida lawyer to represent him, and weather-related flight delays made it impossible for him to attend in person. Chief Magistrate Judge Edwin Torres rescheduled arraignment for July 6. Hopefully, this court is not going to get into the habit of letting the defendants delay the prosecution. You can imagine a delay well past the next election if, for instance, every time Trump fires his lawyers he is granted a pause so new counsel can get up to speed.

But the most intriguing legal developments today happened in a Manhattan courtroom, where a federal district judge, Alvin Hellerstein, took up Donald Trump’s motion to have his state criminal case tried in federal court. A state grand jury indicted Trump on 34 counts of falsifying business records in April. At the end of Tuesday’s hearing, Judge Hellerstein said that while he would issue a final ruling in two weeks, he was leaning heavily in favor of letting the case stay in state court, as the Manhattan district attorney requested.

Judge Hellerstein said that he saw no reason that a trial in state court couldn’t provide a “measure of justice” equal to a federal proceeding. He said that while his comments weren’t his final decision, they were his “current attitudes.” The judge all but said he would order that the case should stay in state court.

There are three questions the court has to resolve in Trump’s favor before it can send the case to federal court. But today, it looked like Trump had a shot at only one of them. The issues are:

1. Whether Trump is a federal official, former or current, who can invoke the removal act;

2. Whether the crimes Trump is charged with involve acts committed under “color of office,” official acts undertaken by a president; and

3. Whether Trump can offer a legitimate federal defense to the charges against him.

A former president is probably the kind of official who is able, under the removal statute, to seek this kind of relief—he is a former federal employee, and that arguably qualifies. Judge Hellerstein seemed inclined toward that view but said it didn’t matter because of the other two issues, both difficult for Trump. The judge appeared unpersuaded by Trump’s lawyers’ arguments that his acts were official and that he had a colorable federal defense to offer. So, even if Trump could convince the judge that writing hush-money checks for someone he had sex with was an official presidential act, he’d still need a defense under federal law. The judge said he didn’t see one identified in Trump’s motion to remove the case.

Trump’s lawyers ran into a little hot water in trying to prove his acts were official. The judge asked if there was evidence of a retainer agreement between Trump and Michael Cohen, the lawyer who made the hush-money payments for him. On the fly, Trump’s lawyers called Alan Garten, the chief legal officer for the Trump organization, who was available. The district attorney’s office objected that they’d had no notice, but the judge let the impromptu witness examination proceed.

After hearing the testimony, the judge concluded that the act Trump was indicted for does not relate to the office of the presidency; that the prosecution was about a hush-money payment. He said there was no evidence Cohen worked on anything other than the hush money in exchange for the payments from Trump, so there was no link to any official act of the president. And the judge said he didn’t see any colorable federal defense raised in the defendant's notice of removal—that means nothing that has a chance of succeeding.

Not only does it look like Trump is headed for a loss on the removal issue, the district attorney’s office seems to have made some gains as a result of Garten’s testimony. It’s an unexpected windfall they wouldn’t have gotten absent the unusual testimony. Garten wasn’t able to establish that Cohen was hired to do anything connected to the work of the presidency, or even that his work cleared the path for Trump to fulfill his obligations. Instead, Garten confirmed that some of the $420,000 payments Trump made to Cohen went to Stormy Daniels and that he, Garten, didn’t know about any other work Cohen did for Trump. He said it was possible Cohen did some, but he couldn’t specify any.

Garten also conceded that the payments to Cohen were treated differently from other entries in the business’ general ledger. Those entries typically have a description, explaining what they are for. But the payment to Cohen didn’t have that. Instead of establishing that Trump is charged with conduct that was part of his official work as president, the testimony helped to establish that Cohen was Trump’s personal lawyer, and that he was paid out of Trump’s personal funds to handle his personal affairs—literally. All of it adds up to more evidence that helps the district attorney’s case. It wasn’t a good outing for Trump.

So, chalk one up for the good guys. The hearing unfolded just as we anticipated, based on the law and the facts. Whatever his reasons for wanting to get into federal court, or even if it’s just a delay tactic, it seems very likely that in two weeks, Judge Hellerstein will shut everything down. In the meantime, the rules for this situation explicitly permit proceedings to continue in state court.

It’s likely we’ll see Trump make a similar proceeding if he is indicted in Fulton County, Georgia, later this summer. In that case, he’d seek removal to the Northern District of Georgia. The judge there will have the benefit of the Manhattan proceedings, although the facts will be different. But I’d expect it to go the same way. Even if Trump can muster a federal defense to those charges, trying to steal an election isn’t an official act of a president.

We’re in this together,

Joyce