NEW YORK – The hush money case against former President Donald Trump appears headed back to a New York court after a federal judge showed little inclination Tuesday to let Trump move the history-making prosecution to federal court.
Changing courts could give Trump a new avenue to try to get the case thrown out. Hoping to get to federal court, Trump's lawyers argue that he was acting in his capacity as president when he hired and paid a personal attorney who orchestrated payouts to squelch allegations of extramarital sex — payouts that are at the heart of Manhattan prosecutors' case against Trump.
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After a three-hour hearing that featured surprise testimony from a Trump company insider, Judge Alvin K. Hellerstein told a packed courtroom that he was not ready to make a “firm ruling” but saw “no relationship to any official act of the president” in the alleged conduct that made Trump the first former president ever charged with a crime.
"There's no reason to believe that an equal measure of justice could not be rendered by the state court,” Hellerstein added. He said his remarks reflected his “present attitudes,” and a formal written ruling will follow within two weeks.
Lawyers for both sides declined to comment after the hearing.
Trump, a Republican, pleaded not guilty in April to state felony charges of falsifying business records to hide 2016 hush money payments to porn star Stormy Daniels and Playboy model Karen McDougal. Trump has denied having had sexual encounters with either woman.
According to the indictment, Trump fudged records at his company to cover up the nature of payments made in 2017 to his former lawyer, Michael Cohen, to compensate him for arranging to buy the women's silence and fronting the money for Daniels.
Trump’s lawyers have said those payments to Cohen were legitimate legal expenses and not part of any cover-up.
Pressed by Hellerstein to prove it, Trump lawyer Todd Blanche called the legal chief of Trump's company to the witness stand, though attorneys for both sides last week had agreed they would not call witnesses at the hearing.
Alan Garten, the Trump Organization’s chief legal officer, testified that he believed the payments were partly reimbursements for the money that Cohen had paid Daniels, and partly to compensate him for “the role that he was playing as counsel" for Trump's personal matters.
However, Garten said he knew of no written retainer agreement between Trump and Cohen, though Trump's attorneys “typically” had them. On being shown some of Trump's ledgers, Garten also testified that “the vast majority” of attorney payments were accompanied by some description of the lawyers' work, though there was no such description for the monthly $35,000 payments that went to Cohen throughout 2017. Company documents recorded them generally as legal expenses.
Garten said he sometimes referred to Cohen non-corporate matters involving Trump and his wife, Melania, but wasn't sure what Cohen did about those things.
After hearing Garten's testimony and arguments from both sides' lawyers, Hellerstein said the evidence suggested that Cohen “was hired privately, not under color of any presidential office or related to it.”
“We have the invoices” showing what Cohen was paid, the judge noted. “But no proof of what he did.”
U.S. law allows criminal prosecutions to be moved from state to federal court if they involve actions taken by federal government officials as part of their official duties, among other qualifications.
While requests to move criminal cases from state to federal court are rarely granted, the prosecution of Trump is unprecedented.
The Manhattan district attorney's office, which is bringing the hush money case, has argued that nothing about the payoffs to either Cohen or the women involved Trump's official duties as president.
If the case is moved to federal court, Trump's lawyers could try to get the charges dismissed on the grounds that federal officials are immune from criminal prosecution over actions they take as part of their official job duties.
A shift to federal court would also mean that jurors would potentially be drawn not only from heavily Democratic Manhattan, where Trump is wildly unpopular, but also from a handful of suburban counties north of the city where he has more political support.
In state court, a criminal trial was set for March 25 — in the thick of the primary season before next year's November presidential election. Trump is currently the front-runner for the Republican nomination.