To those who have watched Donald Trump’s courthouse maneuvers, his latest move came as no surprise. On Thursday, he filed a notice to “remove”—that is, to transfer—the trial on his Manhattan indictment from state court to federal court in the Southern District of New York.
He did it for delay, the same reason that explains how Trump deals with so many of his confrontations with the law – trying to outrun accountability. This one will likely be the first of many legal machinations he will attempt in the New York case, and it should fail.
Under federal law, a federal officer who is prosecuted (or sued) in state court may remove the case to federal court if the conduct at issue relates to “any act” that the officer took “under color of such office.” Longstanding Supreme Court precedent establishes that the conduct at issue must have been something done in the performance of the officer’s job.
The standard for deciding that question is generous to federal officials. A 1982 Supreme Court ruling requires that judges look to see if the officer was performing a federal “function” within “the outer perimeter” of the officer’s duties.
Even under that broad measuring rod, Trump’s claim here is a huge stretch. He will have to convince a federal judge that he was performing an official duty when, during his first year in office, he made monthly installment payments that the indictment alleges were for reimbursing his personal lawyer, Michael Cohen, for making a $130,000 hush money payment to the adult film actress, Stormy Daniels.
Trump’s need to suppress the story was especially urgent in the days just after the “Access Hollywood” scandal, mere weeks before the 2016 election. The criminal charges are that the reimbursement payments were mischaracterized as business expenses in records submitted to the state of New York, which is a fraud on the public and the basis for the indictment.
Trump’s removal notice claims that he wasn’t reimbursing Cohen for paying Daniels, but rather for legal expenses incurred after he “hired Cohen to handle his personal affairs” while President. Trump asserts that he did this “solely because he was President of the United States,” needing to separate personal and presidential matters.
There you have some real chutzpah. Admitting that the payments to Cohen were for personal business, then claiming that the personal was presidential. L’etat, c’est moi.
And that isn’t the only problem. The motion also astonishingly claims that Trump hired Cohen to do this personal work only after he became President, even though, as ABC News has reported, “for more than a decade [before the 2016 campaign], Cohen stood by Trump’s side as his personal attorney, fixer and confidant.”
This is not to say that a motion in federal court by Manhattan prosecutor Alvin Bragg to send the case back to state court is sure to succeed. We have recently seen Judge Mary Kay Vyskocil, a federal judge in the Southern District of New York appointed by Trump, signal some skepticism about Bragg.
In ruling against the Manhattan district attorney’s motion to stop Mark Pomerantz, a former Bragg deputy, from having to testify before Representative Jim Jordan’s House Judiciary Committee, she accused Bragg of “engaging in . . . political theatre” and wrote, mimicking critique often directed at Trump, that “no one is above the law.”
Trump’s removal notice pointedly cites Vyskocil’s ruling at length, perhaps in judge-shopping hope that she will be assigned the case. Today, however, the case was assigned to Judge Ronnie Abrams, appointed by former President Barack Obama. It’s conceivable that she will recuse herself to avoid any appearance of impropriety, as she has done before. Her husband, Greg Andres, was part of Special Counsel Robert Mueller’s investigation team.
On the law, it’s plain that not everything a President does while he is in office is within the scope of his official duties. In recent months, three federal courts have concluded in January 6-related civil rulings, that acting to disrupt the certification of the President’s Biden election, and inciting violence, would not be conduct within the scope of a President’s official duties.
While those actions are on a different plane from Trump’s conduct and contentions in the New York prosecution, his current assertion has no better claim to being presidential “in function.” One can realistically hope that the federal court won’t take much time in sending the case back to the state court from which it came.
And Bragg always has the option of avoiding delay altogether by simply accepting the removal and trying the case in federal court. He may not wish to do so, however. His deputy district attorneys trying the case would be on less familiar ground in federal court; they would be dealing with different rules of evidence and procedure than in state court. On the other hand, Bragg was a federal prosecutor in Manhattan, and his guiding experience would prove valuable.
Whatever Bragg decides, savvy judges who watch Trump’s cases will view the former President’s attempt at delay for what it is. And that is likely to add to the lengthening shadow of judicial skepticism that increasingly dogs his every manipulative interaction with the American justice system.
