Donald Trump seeks to move hush money trial from state court to federal court

Lawyers for ex-President Donald Trump sought Thursday to move his criminal case -- over alleged hush money payments prosecutors said were made to influence the 2016 presidential election -- from state court to federal court.

Trump's attorneys argued the venue change was warranted because the charged conduct occurred while he was president.

"This case is unprecedented in our nation's history,” wrote Trump attorney Susan R. Necheles, in the notice of removal filed Thursday. “Never before has a local elected prosecutor criminally prosecuted a defendant either for conduct that occurred entirely while the defendant was the sitting President of the United States or for conduct that related to federal campaign contribution laws.”

Necheles wrote that “the indictment charges President Trump for conduct committed while he was President of the United States that was within the 'color of his office.'" 

Trump defense attorney Todd Blanche first disclosed the defense team’s intention to attempt to move the case at the end of a hearing Thursday in Manhattan Criminal Court, during which lawyers wrangled over the prosecution’s proposed protective order for discovery in the case.

Thursday was the deadline for seeking to move the criminal case to federal court, a rare legal move that experts said was unlikely to succeed.

Blanche and Necheles declined to answer questions from reporters after the hearing.

Emily Tuttle, a spokeswoman for Manhattan District Attorney Alvin Bragg, whose office is prosecuting Trump, said in an email: “We are reviewing the notice of removal and will file an appropriate response in court.”

Trump was indicted last month on 34 counts of falsifying business records in what prosecutors called an attempt to cover up alleged hush money payments connected to an alleged affair. Trump pleaded not guilty.

“This effort is extremely unlikely to succeed,” Rebecca Roiphe, a professor at New York Law School, said in an interview with The Associated Press. “It’s not even clear that this would be a particularly effective delay tactic.”

Trump did not appear at Thursday’s hearing.

Acting State Supreme Court Justice Juan Merchan signaled he would ultimately approve the protective order, which would bar Trump from distributing evidence turned over to his attorneys through the discovery process.

But Merchan directed the prosecution and defense to come to agreement on some disputed language in the proposal. Merchan said once there was consensus, he would hold a proceeding to formally advise Trump of the contents of the protective order. Merchan said Trump would appear virtually at that session.

Trump’s attorneys had argued in court papers that the prosecution’s proposed protective order was “extraordinarily broad,” would hamper Trump’s ability to mount his defense and would violate “federalism principles by transforming this Court into an arbiter of what a candidate for President may say to prospective voters.”

Calling Trump “the leading Republican candidate for President of the United States,” his lawyers argued “he has a right and a need to respond, both for his own sake and for the benefit of the voting public” to the allegations against him.

Under the proposed protective order, Trump would be barred from using any discovery material “for any purpose other than his defense.”  Trump also would be prohibited from sharing the material with the news media, or from posting it on social media.

Manhattan Assistant District Attorney Catherine McCaw argued in court Thursday that the protective order was necessary because of the risk that Trump supporters could seek to harm witnesses or court personnel. McCaw said Trump has “an extensive history of making inflammatory remarks,” including against Bragg and Merchan.

McCaw also cited the example of a Georgia poll worker who had to flee her home after Trump criticized her publicly.

“The defendant’s words have consequences,” McCaw said.

Merchan said Trump still would be permitted to voice his opinions about the case, although the judge previously had admonished Trump to avoid language that could prompt violence.

“This is not a gag order,” Merchan said.

"Obviously, Mr. Trump is different," Merchan said, referring to his position as a 2024 presidential candidate and criminal defendant. "It would be foolish of me to say he isn't. He's a former president and he's running again."

By Nicole Fuller

nicole.fuller@newsday.com@NicoleFuller

Nicole Fuller is Newsday's senior criminal justice reporter. She began working at Newsday in 2012 and previously covered local government.