• Show Notes

Dear Reader,

The New York County Criminal Court building is about half a block away from the Daniel Patrick Moynihan United States Courthouse. Basically, you leave the state courthouse, head south, cross Worth Street, and you’re at the federal complex. Yankees slugger Aaron Judge could stand in front of one building and hit a baseball through a window of the other. 

Geographically, the two courthouses are neighbors. But legally, they’re worlds apart. 

And that’s why Donald Trump has made a little-noticed but high-stakes motion to transfer his pending indictment by the New York County (Manhattan) District Attorney from state court down to the federal building. Trump’s motion stands a small – but non-zero – chance of ultimate success, in my view. If he does prevail, it’s a game-changer. And Trump’s removal effort foreshadows a more consequential legal struggle ahead, if and when the Fulton County District Attorney indicts him in Georgia. 

Last month, Trump filed a motion to remove his indictment by the Manhattan DA – for 34 counts of falsification of business records relating to hush money payments to Stormy Daniels – from state court to the federal Southern District of New York. Trump invoked an obscure (but quite real) federal law that allows for such transfer where a former or current federal official is charged in state court with an offense “for or relating to any act under color of such [federal] office.” In other words, if a fed faces a state-level criminal charge for something he did “under color of” his official federal duties, then the case gets sent over to federal court.

I can hear what you’re thinking: How on earth could paying hush money to a porn star and then (allegedly) falsifying records have anything to do with the official duties of the president? Indeed, Trump’s lawyers almost visibly strain when making their arguments on this point. They note that Trump reimbursed Michael Cohen for the hush money payoffs in 2017, while Trump was president. That’s true, of course, but doing something while president is not the same thing as doing something as part of the official duties of the presidency. Trump also argues that he retained Cohen as a lawyer solely to comply with various administrative requirements placed on the president and his personal business. This one’s a bank-shot, and not particularly persuasive; it’s not clear how mandatory presidential administrative filings might encompass extracurricular hush money payments. Finally, Trump argues that acts taken around his candidacy automatically relate to the presidency itself – a dubious claim logically (if anything, a candidacy necessarily pre-dates and is separate from actual service in office), and an odd quasi-concession that the hush money payments were indeed intended to influence the election. 

While I don’t find Trump’s arguments wildly persuasive, they aren’t preposterous. And the federal judge who will make the first call here, Judge Alvin Hellerstein, is a bit mercurial. Little that he might do would surprise me. (I had dozens of cases in front of Judge Hellerstein, and once got him reversed on appeal when he made a fairly obviously wrong ruling; it’s here, if you’re interested. He’d rib me about it, in good humor, for years afterwards.) On balance, Trump has a puncher’s chance on this motion. He’s not likely to prevail, but he just might land one lucky shot to the jaw.

So why would Trump want to hop across the street from state to federal court? For one, Judge Juan Merchan, who is presiding over the state case, has handled the proceedings fairly and is generally seen as a straight-shooter, but also one who leans a bit towards the prosecution. And Judge Merchan is no political fan of Trump’s. He donated money – a ridiculously small amount, $35 total, but a donation nonetheless – to a political organization that describes its purpose as “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” (As I wrote before, Judge Merchan should recuse himself from the Trump case, given this potential conflict of interest; he hasn’t.)

Then there’s the potential jury pool. If the case remains in state court, Trump’s jury will be drawn exclusively from New York County (Manhattan, that is), where Trump won a meager 12.3% of the vote in 2020. (Meaning, to state the obvious converse, that over 87% of Manhattan residents voted against him.) But if he gets the case kicked over to the federal Southern District of New York, then the majority of his jury pool will come from Manhattan. But the the SDNY also includes, and could draw jurors from, Bronx County (where Trump got 15.9% of the vote; not great, but better than Manhattan), Westchester (31.3% for Trump), Rockland (48.7%), Putnam (53.3%), Orange (49.4%), Dutchess (44.4%), and Sullivan (53.9%). The differences are small in some counties but massive in others – Trump even won some of the northern counties – and he’s better off with potential jurors from anywhere other than Manhattan.   

Most consequentially, if Trump does somehow get his case moved to federal court, then his next move is to seek dismissal on the basis of federal immunity – essentially the notion that a federal official cannot be criminally prosecuted for actions taken in the course of the job. The legal test here is similar, though not quite identical, to the standard to remove a case from state to federal court in the first place. If Trump somehow succeeds in getting the case over to federal court, then he’s most of the way to an outright dismissal. So while Trump has little chance to succeed on his motion in New York, if he does somehow pull it off, then the entire case against him will be in jeopardy. 

And bank on this: if and when the Fulton County DA charges Trump later this summer, he’ll make the exact same motion to move the case to federal court. On that count, he has a better chance to succeed. Prosecutors surely will make a compelling argument that the president has no role in administering elections, and that Trump’s attempt to steal the Georgia election was, if anything, quite the opposite of what any president can and should do.

But while the Constitution leaves the administration of elections to the states (or to Congress if it chooses to legislate), it’s not quite right to conclude that the president has nothing to do with elections. The president does have a broad constitutional duty to “take care that the laws be faithfully executed,” and nobody disputes that the president could intervene if, for example, certain voters were demonstrably being denied their lawful right to vote. Trump might argue that his intent was to fulfill that duty. After all, on  the infamous call to Georgia Secretary of State Brad Raffensperger – the same one where he asks Raffensperger to “find 11,780 votes” – Trump also says, “I just don’t know why you don’t want to have the votes counted as they are.” Even if one thinks Trump handled his presidential duties in a clumsy or aggressive or offensive (or worse) manner, the argument will go, he was nonetheless trying to do his job. While prosecutors have the better argument, it’s a close enough call that a judge could decide this one either way. 

Get used to this removal issue. We’re moving into an obscure pocket of the law, and the issue has mostly flown under the radar thus far. But resolution of the removal claims could make all the difference in both of Trump’s impending state prosecutions.

Stay Informed, 


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