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Judge Presages Returning Bragg Trump to NYS Court Citing Private Act No Colorable Defenses

by Matthew Russell Lee, Patreon Book Substack

SDNY COURTHOUSE, June 23 – Donald Trump filed a notice of removal to Federal court of Manhattan DA Alvin Bragg's indictment of him in state court, on May 4, 2023.

 The notice was assigned to U.S. District Court for the Southern District of New York Judge Ronnie Abrams, but was quickly reassigned to Judge Alvin Hellerstein, as Inner City Press reported.

On June 27, Judge Hellerstein heard argument - and one witness - and telegraphed a written decision within two weeks sending the case back to state court. Inner City Press live tweeted, thread here:

OK - now NYS v. Trump hearing on removal of Bragg criminal case to Federal court, before SDNY Judge Alvin Hellerstein. 

All rise!

Matthew Colangelo "for the People" Todd Blanche/Susan Necheles "for President Trump"

Judge Hellerstein: If there is a core of agreed information, it may be good for me to make a rather long opening statement. Donald Trump, previously president of the US

 Judge: The statute allows removal if the case concerns acts for or by them under color of their office. Also, the defense would have to be based on Federal law. On April 4, a grand jury in New York County charged defendant with 34 counts, business falsifications

 Judge: Defendant met with Michael Cohen, who then met with the CEO of American Media Inc., who agreed to suppress negative stories and to alert Cohen before they were published. There was a story about Stormy Daniels, an adult film actress...

Judge: Cohen paid Stormy Daniels $130,000, with the understanding he would be reimbursed. Cohen took it from his home equity.  On February 14, 2017 - Donald Trump was President - Cohen emailed his first invoice requesting $35,000 for January for his retainer

Judge: Cohen pled guilty to his role in paying American Media'... On May 4, 2023, Donald Trump removed the case to Federal court. In the notice of removal, he contends that the indictment charges him while he was president with acts within the color of his office Judge: The notice of removal cites the Take Care clause; the notice argues that the defendant hired Cohen solely because he was President & that the indictment was politically motivated. On May 30, the People filed the instant motion to remand. There are 3 issues

 Judge: Is or was he an officer? Were the acts under color of his office? And third, does he have a Federal defense? Mr. Colangelo, the floor is yours. Colangelo: The Supreme Court emphasized removal is extraordinary. This defendant has not met the standard

Colangelo: These were personal payments. And he cannot establish a colorable Federal defense. He disclaims any duty to separate his affairs. The white paper - Judge Hellerstein: That is not evidence. Colangelo: It could be admitted.

Colangelo: Here is a transcript of defendant's January 11, 2017 press conference. It's about the Morgan Lewis white paper We have not filed it with the court. Judge: But this is an evidentiary hearing. We'll need to take evidentiary facts.

 Judge: Let's say that a widow of a soldier sent into battle by the President sues the President - that would have to be removed, right?

Colangelo: Yes. But a tort action would continue, under Westfall and Carroll v Trump

Judge: Mr. Blanche points out that Congressmen have removed under this statute.  Blanche: It is inconceivable that all other Federal officials including elected could remove but, ah shucks, not the President Judge: I agree, but I don't think I'll need that to rule

 Colangelo: Writing personal checks, even if he did it in the Oval Office, is not an official act. Look at Matter of Donovan, the former Labor Secretary.  There's also an Ohio case.

Judge Hellerstein: As a Federal judge I can write personal checks for milk delivery Colangelo: See Clinton v Jones --

Judge Hellerstein: That was about conduct before Mr. Clinton was President. Here, Mr. Trump says the hiring Cohen relates to the prescriptions of the Constitution. It sounds a little far-fetched but I think that's the argument.

Colangelo: We filed a number of those exhibits under seal and we ask that they remain that way. Judge Hellerstein: They are stipulated facts, we can recite them. Why don't you do that? Colangelo: Let me confer with defense counsel. Judge: I'd like 1 of the checks

 Colangelo: We're happy to ask the defense which check they would prefer...  Judge Hellerstein: This is a public hearing, I need to make a public record. Go ahead and read them. Colangelo: Exhibit 3, we proffer as evidence there was a private agreement

 Colangelo: I'm sorry if I misunderstood from the colloquy we had yesterday [?] Colangelo: It's an exhibit from October 2016. Judge Hellerstein: Mr Blanche, is your microphone working? Blanche: No. Judge Hellerstein: But it was yesterday [??]

 Colangelo: People's Exhibit 8 is from First Republic Bank... Exhibit 9, the 11 invoices... Now, pages 10, 11 and 12.

Todd Blanche: We'd like to get in Exhibits A and B to my declaration. B is a series of emails from Mr. Cohen  Now Blanche is reading into the record: "Dear All.. I took my place in Ivanka's old office... drop a note telling me how quiet the 26th floor is now that I am gone. Michael Cohen." Also, portions of "Disloyal" - page 308 to 310.

Todd Blanche: The Constitution puts a special responsibility on the President - he alone composes a branch of government. So there's not a clear line between his personal and official affairs. He cannot take funds from a state or a foreign government.

Blanche: Mr. Cohen says something different every day-- Judge Hellerstein: It doesn't matter when he'd say. He is not here. You've given no documentary support for anything that you're saying. The only one who knows is the President, and he's not here

Todd Blanche: If the court wants to hear from Mr. Cohen, find, we can bring him here.  But I don't think it's necessary. Judge Hellerstein: Is there a retainer agreement? Todd Blanche: We have a witness today who we could call.  Give me two minutes...

Todd Blanche: We call Alan Garten. Colangelo: We had no notice. We ask to cross examine tomorrow. Judge Hellerstein: Let's see what he has to say first. Alan Garten: I work at the Trump Organization, as chief legal officer since January 2017

 Blanche: Are you familiar with Michael Cohen? Garten: Yes, he was a lawyer with the Trump Organization until January 2017. Blanche: Why did he leave? Garten: To be personal attorney to President Trump. Colangelo: Susan Hoffinger will be taking over, for the cross

Judge Hellerstein: Change places then, Mr. Colangelo. Garten: People said Mr. Cohen -- Judge Hellerstein: That's hearsay. What is your personal knowledge? Garten: We sent matters about President Trump and the First Lady to Mr. Cohen.

Blanche: Why did Mr. Cohen leave? Hoffinger: Objection! Judge Hellerstein: Sustained. Blanche: Can you say why? Judge Hellerstein: Hearsay.

 Blanche: What was the reason for separating President Trump from the Trump Organization? Hoffinger: Objection! Judge Hellerstein: Overruled. Garten: Consistent with the Morgan Lewis white paper, to create distance.

 Judge Hellerstein: I think you're finished, Mr. Blanche. Hoffinger: Your Honor, we would renew our request - Judge Hellerstein: Ah, do it now. Hoffinger: When attorneys were retained, what was the process? Was there a retainer agreement?

Garten: Typically, yes. Hoffinger: For example, with Vinson & Elkins? Garten: I'm not familiar but -- Judge Hellerstein: I think you've made your point. Hoffinger: Was there a retainer with Michael Cohen? Garten: Not that I've seen. Just summary invoices.

Hoffinger: I'm going to hand up pages from the general ledger Judge Hellerstein: Go ahead. Garten: I don't believe the decision to separate was not from Morgan Lewis. Hoffinger: They who made the decision? Garten: I did. And Eric Trump.

Hoffinger: Nothing further. Judge Hellerstein: Re-direct? Blanche: Briefly your Honor.  Let me show you the ledger. Judge Hellerstein: That payments were sometimes record and sometimes not, I think I have gotten that interesting point. Can we go to another one?

 Hoffinger: Was Mr. Dowd hired and paid? With a retainer? Blanche: Objection! Judge Hellerstein: Sustained. Hoffinger: Well did he? Judge Hellerstein: Sustained! Let's move on.

 Colangelo: There is no colorable Federal defense. Mr. Blanche claims there is Federal preemption. But that is not possible, as to our falsification of business records charges.  Judge Hellerstein: Your statute deals with falsification with intent of another crime

Judge Hellerstein: You're not prosecuting Mr. Trump for violating the elections law - but what if you're prosecuting him for intending to violation the election law? Colangelo: Or there's the tax crime. Pecuniary loss to the state is not required

Colangelo: And we know there are violations of Federal elections law - Michael Cohen's guilty plea was accepted by a judge in this courtroom. Thank you. Todd Blanche: We have the right to have a Federal judge hear and decide whether there was any FECA violation

 Blanche: The People [of NYS] want this both ways - they want to use the possible Federal election law violation, then say, maybe we have something else. The People are playing games. The previous DA did not move forward

 Blanche: What you really have is a charge of Federal election law violation dressed up as a business records case.  Anyway we've shown with the Garten testimony today that Cohen was paid for actual legal work. It doesn't matter if he did a good job or a bad one.

Judge Hellerstein: OK, thank you. I've read the papers. I've taken evidence. I've heard oral argument. I intend to write and issue a decision within two weeks. But my present attitudes are, on if the President is an officer who can remove, I decline that issue

 Judge Hellerstein: But it seems the President has to be viewed as an official who can remove.  But I need not involve myself in that. But the act for which he has been indicted does not relate to anything about his office. This is about a hush payment

Judge Hellerstein: There's no evidence that Cohen did any work for the money, beyond the hush payment. There is no link to any official act of the President. I find that there is no colorable Federal defense raised in defendant's notice of removal.

Judge Hellerstein: These are my present attitudes. The written opinion will be the decision. What I have just said is not necessarily binding. We are adjourned.

More on Substack here

  Back on May 8, Bragg's office filed an "unopposed motion" for a conference, emphasizing that "Defendant's Notice of Removal does not operate to stay the court action (up to the point of entering a judgement of conviction," citing 28 USC Section 1455(b)(3). 

   Bragg urged a speedy conference to "minimize disruption to New York's "traditional state authority" to punish 'local criminal activity,'" citing Bond v. US, 572 US 844, 858-9 (2014).

On May 9, Judge Hellerstein set a schedule: "Any motion for remand, and supporting papers, shall be filed by May 30, 2023; Opposition papers shall be filed by June 15, 2023; Reply papers shall be filed by June 23, 2023. An evidentiary hearing, to the extent that there are disputed issues of fact, and argument as to the law, shall be held June 27, 2023, 2:30 pm."

 On May 30, Bragg's office filed, including "Because none of the requirements for federal-officer removal are satisfied in this case, the Court should reject defendant Donald J. Trump’s effort to remove this prosecution from state court."Full memo on Patreon here.

 On June 15, near midnight, Trump's lawyers filed their papers including Michael Cohen's emails praising Trump and becoming his personal lawyer. On Patreon here.

On June 22, Bragg's office filed a joint letter that " the parties have stipulated that they will not present live witness testimony at the June 27 hearing. To the extent the Court deems it necessary to hear from factual witnesses after the arguments of the parties on June 27, 2023, the defense respectfully requests that the Court schedule such a hearing at a convenient date after June 27, 2023. Third, to the extent a defendant has the right to be physically present at a 28 U.S.C. § 1455(b)(5) hearing under Rule 43 of the Federal Rules of Criminal Procedure, the Sixth Amendment Confrontation Clause, the Fifth Amendment Due Process Clause, or other authority, defense counsel requests that the Court waive the defendant’s presence at the June 27 hearing. Todd Blanche has represented, and will do so on the record on June 27, that he has discussed with the defendant any rights he may have to be present at the Section 1455(b)(5) hearing and the defendant has voluntarily waived such rights." Full letter on Patreon here

On June 23, Bragg's office filed its opposition to removal, arguing that Trump "has not raised a colorable defense of Supremacy Clause immunity" nor "of federal preemption."

 Inner City Press will be reporting on the case, as it has on the Carroll v. Trump trial in SDNY.

  This case is People of the State of New York v. Trump, 23-cv-3773 (Hellerstein). 

More on Bragg's other recent SDNY case including analysis on Substack here


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