A judge appears poised to reject former President Donald Trump’s attempt to move the New York criminal case that accuses him of falsifying business records tied to a hush money payment to federal court.
In a hearing Tuesday, District Judge Alvin Hellerstein was skeptical of Trump’s argument that the case should be tried in federal court because the alleged violations – reimbursements Trump made to his former personal attorney Michael Cohen – occurred during his presidency.
“The act for which the president has been indicted does not relate to anything under color of his office,” Hellerstein said.
Hellerstein, an appointee of former President Bill Clinton, said he plans to issue a decision within two weeks.
“Cohen was hired as a private matter to take care of a private matter,” the judge said. “The fact that it was a president who made that private hiring does not change the facts or the legal principle to be derived from the facts,” he added.
Trump is accused of falsifying business records when he reimbursed Cohen, who prosecutors allege made hush money payments during the 2016 campaign to Stormy Daniels. The adult film actress claimed she had an extramarital affair with the former president, which Trump denies. Trump has pleaded not guilty to all charges in the case.
District Attorney Alvin Bragg’s office argued that Trump was acting in his personal capacity when he supposedly sent the payments.
“Writing personal checks, even if he did it in the Oval Office, is not an official act,” prosecutor Matthew Colangelo said Tuesday.
Trump’s lawyers first filed a motion to move the case in May, claiming that the allegations tied to the 34 felony counts of falsifying business records are related to his duties as president.
Trump attorney Todd Blanche argued Tuesday that the alleged business records were truthful because they were so-called “retainer” or “legal payments” to Cohen.
But when Hellerstein pushed Blanche on whether there was a retainer agreement in place, Blanche confirmed there was no agreement but claimed the invoices from Cohen to Trump detail the agreement enough.
That didn’t seem to sway the judge.
Other than the reimbursements to Cohen related to the Daniels settlement, there’s no documentation of any legal services provided by Cohen as special counsel to the president, Hellerstein said. “There’s no proof of what he did.”
In an unexpected move, Blanche called Alan Garten, the Trump Organization’s chief legal officer, to the stand. He testified that the former president contracted Cohen on a retainer to serve as his private attorney to help him navigate separating public and private business.
According to Garten, Cohen took on the role of personal attorney to President Trump after he left the Trump Organization in 2017. Garten said it was done to adhere to new policies put in place when Trump assumed office.
Business related to Trump or then-first lady Melania Trump would be funneled through Cohen at that time, Garten said.
“I know those payments were made to Mr. Cohen in 2017,” Garten said.
“My understanding was to reimburse him for the payments that he had made as part of the Clifford settlement agreement and also to compensate him for the work in the role that he was playing as counsel,” Garten testified when asked why Cohen was paid by Trump. But he added he didn’t know what work Cohen actually did for Trump.
The testimony of Garten turned into a mini trial with back-and-forth over whether there was a retainer agreement, if that was normal practice at the Trump Organization, and how those payments were accounted for in the general ledgers of Trump and the Trump Organization – foreshadowing part of Trump’s defense.
Trump did not appear in the Manhattan federal courtroom. Hellerstein previously granted the former president’s request to waive his appearance ahead of the hearing.
The litigation over moving the case to federal court has not stopped the case from moving forward where it currently proceeds before Judge Juan Merchan in New York state Supreme Court.
Merchan set a trial date in New York for March 25, 2024, potentially setting the trial to occur in the middle of the Republican presidential primary season early next year.
This story has been updated with additional details.