Federal Judge Bounces Bragg Prosecution Back To NY Court, Torches Trump Claim That Cohen Was Doing 'Real' Work In Payoff Case

(Photo by Win McNamee/Getty Images)

Yesterday, Donald Trump got booted out of federal court in New York, as Judge Alvin Hellerstein tossed his motion to remove the Manhattan District Attorney's prosecution for falsifying business records to cover up the 2016 hush money payment to Stormy Daniels. It is slightly ironic that the former president is desperate to avail himself of federal jurisdiction, even as he howls daily about the "disgrace" of the Special Counsel's federal cases against him in Florida and (soon?!?) in DC.

After his allies in the House failed to ward off DA Alvin Bragg, Trump raced into the Southern District of New York demanding that it seize jurisdiction from New York Supreme Court Justice Juan Merchan. Trump made three broad arguments in favor of federal removal.

First, he claimed that Michael Cohen was doing actual legal work during 2017 to separate out Trump's business affairs to avoid falling afoul of the Emoluments Clause. Thus, he argued, the payment was "related" to Trump's official duties under 28 U.S.C. ? 1442(a), entitling him to federal removal. Second, Trump argued that the state action is preempted under the Federal Election Campaign Act (FECA) because the associated crime which bumps the false business records charges up to a felony is a violation of federal election law. Last, he argued that the federal court should assert "protective jurisdiction," citing a concurrence in a 1989 Supreme Court case in which Justice Brennan suggested that a federal officer could remove a case from state court if he could show "local hostility to federal authority." Later, he added the obligatory argument about presidential immunity -- for funsies!

Perhaps Trump was hoping that he could luck back into Judge Mary K. Vyskocil's courtroom, where his appointee showed some sympathy for his case in prior litigation over the House Judiciary Committee's subpoenas of Bragg's former deputy Mark Pomerantz. In the event, he wound up with Judge Hellerstein, who rejected his arguments in their entirety.

The court described Trump's claim that his "decision to separate his personal business from his public duties derived from his position as President" as
"conclusory" and unsupported by any evidence.

"Trump has not explained how hiring and making payments to a personal attorney to handle personal affairs carries out a constitutional duty," the judge wrote. "Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty."

As to the second argument, the court recites multiple precedents in support of a "strong presumption against pre-emption" and says that, on this point, "Trump's arguments are without merit; there is no colorable basis to them"

"FECA does not preempt the application of a general state law to conduct related to a federal election except if the law, or its application, constitutes a specific regulation of conduct covered by FECA," the order adds.

As to the demand for the federal court to assert protective jurisdiction, "No case supports Trump's argument; none has been cited and none has been found." And noting the the Supreme Court already ruled that Trump was not immune to prosecution by Bragg's predecessor Cyrus Vance Jr, Judge Hellerstein waved off the last defense as well: "Trump is not immune from the People's prosecution in New York Supreme Court. His argument of immunity is not a colorable defense."

So, the opinion is a total loss on each and every point. But it's worse than that, because Judge Hellerstein took a sledgehammer to Trump's claims that Michael Cohen was actually doing work for Trump in 2017, as Trump's lawyers suggested in their notice of removal.

He noted that there was no retainer agreement, no evidence of any work done by Cohen, and that "the payments to him stopped in December 2017 when Trump's reimbursement obligation to Cohen was completed." There's even a sealed exhibit where someone who appears to be former Trump Org CFO Allen Weisselberg computes how much cash it would take to make Cohen whole, and how to hide it in the corporate ledger:

Exhibit 8, introduced without objection, shows a handwritten notation by someone in the Trump Organization, likely the CFO, calculating how much Cohen was to be repaid for advancing the $130,000 payment to Stephanie Clifford, and how the payment to him was to be disguised as income rather than reimbursement. Trump himself, in a May 2018 tweet, described Cohen's "monthly retainer" as a "reimbursement" in connection with a "private contract[.]"

Whatever Trump was hoping would be the result of this doomed exercise, presumably he wasn't after a judicial finding that his defense is total bullshit. But considering his attorneys' track record thus far, it's basically par for the course.

"The evidence overwhelmingly suggests that the matter was a purely a personal item of the President-a cover-up of an embarrassing event," Judge Hellerstein concluded. "Hush money paid to an adult film star is not related to a President's official acts. It does not reflect in any way the color of the President's official duties."

The case will now be remanded to state court. Well played, sir. Again.

People of The State of New York v. Trump [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.