Trump’s legal team and Manhattan prosecutors are at odds about where he will stand trial

Ten months before Donald Trump’s historic New York City criminal trial, Manhattan prosecutors are using the former president’s comments against him in a tug-of-war over where he will be prosecuted.

Trump’s attorneys have spent weeks trying to get the hush money lawsuit sent to federal court. The Manhattan district attorney’s office said Tuesday that the case should be heard in state court, citing earlier Trump remarks that they claim to decrease his lawyers’ jurisdictional appeals.

Trump, a Republican, pleaded not guilty in state court last month to 34 felony charges of falsifying business records linked to money made to his former lawyer, Michael Cohen, during the 2016 campaign to bury reports of extramarital sexual encounters.

Prosecutors claim that Trump’s firm, the Trump Organization, incorrectly recorded Cohen’s payments as being for a legal retainer that did not exist.

Trump, the Republican presidential nominee for next year, is scheduled to go on trial in state court on March 25, 2024, in the midst of the primaries.

Trump’s attorneys claim that he cannot be charged in state court because some of the alleged behavior occurred while he was president in 2017, including checks allegedly written while sitting in the Oval Office. They contend that the matter should be heard in federal court because it “involves important federal questions,” such as potential violations of federal election law.

In its response, the DA’s office cited tweets from 2018 in which Trump stated that he was paying Cohen a monthly retainer and that Cohen was being paid for a $130,000 “private agreement” the lawyer had with porn star Stormy Daniels to keep her from speaking about an alleged affair.

Trump claimed that the funds had “nothing to do” with his campaign. Prosecutors also highlighted a statement by Rudy Giuliani, Trump’s personal lawyer at the time, in which he stated that the Daniels payment “was made to resolve a personal and false allegation in order to protect” Trump’s family.

Alvin Hellerstein, a federal judge in Manhattan, will ultimately decide whether to take over the case or retain it in state court. Probably after the two parties square off at a hearing on the topic on June 27.

Such requests are rarely granted, but Trump’s is unique in that he is the first ex-president to be charged with a crime. Meanwhile, the matter will be heard in state court.

Matthew Colangelo, a senior counsel to Manhattan District Attorney Alvin Bragg, urged Hellerstein to keep the matter open, stating in court filings Tuesday that Trump’s attorneys had failed to reach a high legal standard.

Trump’s attorneys contend that he should be charged in federal court because, as commander-in-chief, he is a “federal officer.” Colangelo said that Trump’s legal team has failed to satisfy any of the three grounds for bringing the case under that threshold, and he questioned whether it would even apply to Trump.

Over the years, he wrote, courts have debated whether the legal definition of “federal officer” applies to a president or only to other members of the government.

Trump’s charges pertained to efforts “to conceal criminal conduct that largely occurred before his inauguration,” Colangelo wrote. That includes alleged violations of New York laws regulating record-keeping at private businesses — laws that have no federal equivalent, he added.

Trump’s “alleged criminal conduct had no connection to his official duties and responsibilities” but instead “arose from his unofficial actions relating to his private businesses and pre-election conduct,” Colangelo wrote in a 40-page filing.

Colangelo argued that Trump’s legal team’s failure to link his behavior to his official duties undermines any potential defense he may cite, such as presidential immunity.