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Case Number: 23-CV-3773
Judge: Alvin K. Hellertsein
Court: United States District Court for the Southern District of New York (Manhattan County)
Plaintiff's Attorney: New York County District Attorney's Office
Description: New York City, New York Criminal defense lawyers represented Defendant charged with Falsifying Business Records in the First Degree in violation of N.Y. Penal Law ('NYPL') § 175.10.
Defendant, Donald Trump, previously President of the United States, removed this criminal case from the New York Supreme Court to the United States District Court for the Southern District of New York. The People of the State of New York (the "People") moved to remand. The question to be decided, and upon which I write, is whether the governing statute, 28 U.S.C. § 1442(a), authorizes such removal. Section 1442(a)(1) allows "officers . . . of the United States" to remove a civil or criminal case brought against them in a state court, if the case is "for or relating to any act [performed by or for them] under color of [their] office." The cases interpreting this statute, discussed later, require also that the officer raise a defense based on federal law.
The issues have been fully briefed. I heard arguments and conducted an evidentiary hearing on June 27, 2023. I hold that there is no subject matter jurisdiction, that § 1442(a) was improperly invoked, and that the case is remanded to the New York Supreme Court for further proceedings in that court.
I. Summary of the Indictment
On April 4, 2023, a grand jury in the Supreme Court of New York, New York County, charged Trump with thirty-four counts of Falsifying Business Records in the First Degree in violation of N.Y. Penal Law ("NYPL") § 175.10. The Indictment alleges that the crimes were committed between February and December 2017, and can be categorized into three types of falsifications of business records kept and maintained by the Trump organizations: eleven counts of false invoices; twelve counts of false ledger entries; and eleven counts of false checks and check stubs, of which nine were signed by Trump personally-all with intent both to defraud and to commit another crime, or aid or conceal the commission thereof.
II. Statement of Facts Filed by the People
The Indictment was made more specific in a Statement of Facts filed by the People. (Notice of Removal ("Notice"), Ex. E ("SOF").) The People allege that Trump, the beneficial owner of a number of businesses headquartered in New York County, became a candidate for election to become President of the United States in June 2015. In August 2015, Trump, Michael Cohen-a Trump Organization lawyer and Trump's Special Counsel-and the Chief Executive Officer of American Media, Inc. ("AMI"), met to devise a scheme to suppress negative stories about Trump. (Id. ¶¶ 5-7.)
In October 2016, at the direction of his Chief Executive Officer, the Editor-in-Chief of AMI alerted Cohen that Stephanie Clifford, an adult film actress known as Stormy Daniels, was seeking to publish an account of her sexual liaison with Trump during Trump's marriage. Cohen met with Clifford's lawyer and the two reached an agreement, with Trump's knowledge, to exchange Clifford's right to publish her account for $130,000. Trump did not want to make the payment himself. In discussions with Trump and the Trump Organization's Chief Financial Officer ("CFO"), Cohen agreed to advance the money and Trump agreed to reimburse him. Cohen opened a bank account in the name of Essential Consultants, LLC, a shell company that he controlled. On October 27, 2017, Cohen deposited $131,000 from a personal line of credit into the account and wired $130,000 to Clifford's lawyer. (Id. ¶¶ 17-21.)
In January 2017, Cohen and the Trump Organization CFO met to discuss how to reimburse Cohen. They agreed that Trump would pay Cohen $420,000: $180,000 to reflect reimbursement for Cohen's $130,000 payment to Clifford's attorney and an additional $50,000 expense, doubled to $360,000 to enable Cohen to treat the reimbursement as income rather than reimbursement of a hush money payment, and an additional $60,000 bonus. Trump, Cohen, and the CFO then agreed that payment was to be made in monthly installments of $35,000 beginning January 2017. Cohen was to send an invoice monthly to the Trump Organization for payment pursuant to a "retainer agreement." The retainer agreement did not exist. Trump and Cohen confirmed the payment agreement at a meeting in the White House in February 2017. (Id. ¶ 124-27.)
On February 14, 2017, Cohen emailed his first invoice to the Controller of the Trump Organization, requesting $35,000 for January and $35,000 for February 2017, "[p]ursuant to the retainer agreement." (Id. ¶ 28.) The CFO approved payment, and the Controller instructed the Accounts Payable Supervisor to "[p]ost to legal expenses. Put 'retainer for the months of January and February 2017' in the description." (Id.) The invoice was coded in the general ledger, and maintained in the Trump Organization's electronic accounting system, to reflect a payment for legal expenses. (Id. ¶¶ 30-31.)
Cohen, the CFO, and the Controller followed the same procedure for the ten following months, March to December 2017. For each payment, the Trump Organization's Accounts Payable Supervisor prepared a check and check stub notated as payment for legal services. The first two checks, for January and February 2017, were paid by the Donald J. Trump Revocable Trust and signed by two trustees. (Id. 132.) Trump signed the next nine checks, drawn on his personal bank account. Trump then had the signed checks sent back to the Trump Organization in New York City. There, the checks, stubs, and invoices were scanned into the Trump Organization's books and records, and the checks then were mailed to Cohen. (Id. ¶ 33.)
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In August 2018, Cohen pleaded guilty to campaign finance violations in connection with his $130,000 payment to Clifford. Cohen testified, in connection with his plea:
[O]n or about October of 2016, in coordination with, and at the direction of, the . . . candidate [for federal office], I arranged to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information. To accomplish this, I used a company that was under my control to make a payment in the sum of $130,000. The monies I advanced through my company were later repaid to me by the candidate. I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election.
Trump has failed to show that the conduct charged by the Indictment is for or relating to any act performed by or for the President under color of the official acts of a President. Trump also has failed to show that he has a colorable federal defense to the Indictment. For either or both of these reasons, the People's motion to remand the case is granted. The Clerk shall remand the casefile to the New York Supreme Court, New York County.