People of The State of New York v. Trump

Background

A New York grand jury charged Donald Trump with 34 counts of falsifying business records in the first degree under New York Penal Law § 175.10. The indictment concerned invoices, ledger entries, checks, and check stubs connected to payments made to Michael Cohen in 2017. The People alleged that the records falsely described payments that included reimbursement for Cohen’s $130,000 payment to Stephanie Clifford and that the records were created with an intent to defraud and to commit, aid, or conceal another crime.

Trump removed the criminal case from the New York Supreme Court to the U.S. District Court for the Southern District of New York under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). That statute permits certain federal officers to move state civil or criminal cases to federal court when the prosecution concerns acts performed under the authority of federal office and the officer raises a legally supportable federal defense. The People moved to remand, meaning to return the case to state court.

Federal-Officer Status and Acts Under Federal Authority

The court assumed that a former President could qualify as a federal officer for purposes of the removal statute. It stated that this conclusion was unnecessary to the decision and therefore was dictum, meaning a statement not required to resolve the case.

The court held that Trump failed to show that the charged conduct was performed under, or sufficiently related to, the authority of the presidency. The evidence showed that the payments were made from private funds, that the records were maintained by the Trump Organization, and that Trump offered no evidence describing legal services Cohen performed under a presidential retainer. The court found that the evidence strongly supported the People’s allegation that the payments reimbursed Cohen for the payment to Clifford and that the records disguised that reimbursement.

The court further held that hiring a personal attorney and handling private affairs did not become presidential acts merely because Trump was President. It concluded that paying hush money and falsifying business records to disguise the payment did not reflect the authority or duties of the presidential office.

Federal Defenses

The court considered two federal defenses Trump raised: immunity and preemption. As to immunity, Trump did not rely on absolute presidential immunity. Instead, he argued that the Supremacy Clause protected conduct undertaken because he was President. The court held that this was not a colorable defense—a defense with at least a legally and factually supportable basis—because Trump did not show that hiring and paying a personal attorney to handle private matters was authorized or required by federal law. The court also held that reimbursing Cohen and falsifying records to disguise the reimbursement could not be treated as carrying out a constitutional duty.

As to preemption, Trump argued that the Federal Election Campaign Act, or FECA, displaced the relevant New York election-law theories and the New York falsification charges. The court rejected that argument. It held that New York Penal Law § 175.10 is a generally applicable law against fraudulent falsification of business records, not a law specifically regulating federal campaign contributions, expenditures, or disclosures. The court also held that New York Election Law § 17-152 was not preempted by FECA because it did not fall within the categories of state laws that FECA displaces. The court rejected Trump’s additional argument that allegations involving a federal election automatically triggered preemption.

The court also rejected Trump’s argument that the case could be removed based on protective jurisdiction. It found no supporting case law and held that Trump had not shown the type of widespread state hostility to federal authority that might raise that theory.

Disposition

The court held that Trump failed to show either that the prosecution concerned acts performed under color of presidential office or that he had a colorable federal defense. It held that there was no subject matter jurisdiction and that 28 U.S.C. § 1442(a) was improperly invoked. Judge Alvin K. Hellerstein granted the People’s motion to remand and ordered the Clerk to return the case file to the New York Supreme Court, New York County, for further proceedings.