By Jeremy Herb and Kara Scannell, CNN
Former President Donald Trump is trying to move the New York criminal case regarding hush money payments to adult film star Stormy Daniels to federal court, saying the Manhattan district attorney’s charges are tied to Trump’s duties as president.
In a court filing Thursday, Trump’s lawyers also hinted at how they may defend the former president, arguing that the reimbursement payments made to then-personal attorney Michael Cohen were not falsified business records.
“This case is unprecedented in our nation’s history,” the filing states. “Never before has a local elected prosecutor criminally prosecuted a defendant either for conduct that occurred entirely while the defendant was the sitting President of the United States or for conduct that related to federal campaign contribution laws.
Prosecutors allege that Trump falsified business records when he repaid Cohen for hush money payments made during the 2016 campaign to women who claimed they had extramarital affairs with Trump, which he denies. Prosecutors allege the intent was to conceal criminal conduct that hid damaging information about Trump during the election. Trump pleaded not guilty to all charges last month.
In Thursday’s filing, Trump’s attorneys wrote that the former president “denies these were false records.”
Trump “will assert that the statements in the purported business records at issue were in fact truthful statements because the money paid to Michael Cohen was, in part, ‘retainer’ or legal payments to Michael Cohen to act as President Trump’s personal attorney.”
The district attorney’s office said in a statement, “We are reviewing the notice of removal and will file an appropriate response in court.”
The motion from Trump’s legal team has been assigned to district Judge Alvin Hellerstein, an appointee of former President Bill Clinton.
Trump attorney Todd Blanche told New York Judge Juan Merchan during the tail end of a procedural hearing Thursday that Trump’s legal team would file the motion to move the case, in what appears to be a bid to try to undercut Manhattan District Attorney Alvin Bragg’s case against Trump.
Still, the move could add another issue that would need to be litigated ahead of a trial next year.
Elie Honig, a CNN senior legal analyst and former federal and state prosecutor, said the move from Trump’s lawyers was unlikely to succeed.
“While Trump can seek to remove a state-level criminal charge to federal court, he’d have to establish that the conduct somehow involved his performance of his official duties as president, which seems unlikely given that the hush money payments related to his pre-presidency candidacy,” Honig said.
In their argument to move the case, Trump’s attorneys wrote that Cohen was hired as Trump’s personal lawyer to manage Trump’s finances while he was president “in order to separate his business affairs from his public duties.”
“President Trump’s decision to retain Michael Cohen to act as his personal lawyer arose out of his duties as President and therefore gives rise to a federal defense to the charges in this case,” Trump’s lawyers wrote.
Cohen, who worked for Trump for years and was charged in 2018 with tax crimes, is a key witness for the prosecution.
In the filing, Trump’s lawyers also argued that prosecutors are trying to prosecute Trump based on a “novel theory” that Trump committed a felony under New York law by concealing a crime related to a federal election.
“There are serious federal preemption issues with such a prosecution,” Trump’s lawyers wrote.
Trial could be during 2024 primary season
Merchan told the district attorney’s office and Trump’s lawyers on Thursday he wanted them to decide on a trial date sometime in either February or March 2024, which would mean that the trial would occur in the midst of the 2024 Republican presidential primary.
Once the date is set, Merchan cautioned, the attorneys involved — and Trump himself — could not agree to any engagements that could delay the trial.
Thursday’s hearing was the first since Trump appeared in court for his arraignment last month. Merchan tried to iron out disputes between the two sides over a protective order that would limit Trump’s ability to publicize information about evidence from the investigation.
Merchan indicated Thursday that he intended to keep in place the bulk of a protective order proposed by the district attorney’s office, saying that limiting Trump’s ability to speak about evidence turned over by prosecutors in the discovery process would not restrict his ability to talk about the case or defend himself as he runs for president in 2024.
“This is not a gag order,” Merchan said.
Trump’s lawyers objected to language in the protective order limiting what he could say about the case, arguing that his First Amendment rights should not be restricted as he campaigns for president in 2024.
The district attorney’s office responded that Trump has a “an extensive history of making inflammatory remarks” about those who are investigating him — including Bragg — and said that Trump would not be restricted from discussing facts already in the public record.
Trump’s attorneys also objected to the district attorney’s proposed restrictions that would limit the evidence that could be shared directly with Trump from witness cell phones included in the evidence, such as former Trump attorney and fixer Michael Cohen, a key prosecution witness.
Merchan went line by line through the language with the lawyers to try to find middle ground on how personal material from cell phones would remain walled off, while evidence relevant to the case could be shared. The judge urged prosecutors and the defense attorneys to hash out compromise language.
Once the language for the protective order is finalized, Merchan agreed that Trump, as the defendant, should be told about its contents on the record. The defense attorneys and district attorney’s office agreed that could be done virtually at a future court hearing, in order to avoid the massive police presence that was required in lower Manhattan for Trump’s initial court appearance last month.
This story has been updated with additional developments.
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