Donald Trump’s request for his upcoming criminal trial for allegedly falsifying business records to be moved from a state court to a federal court looks certain to fail, legal experts have said.
On Thursday, lawyers for the former president filed a request for Trump’s trial— where he faces 34 charges of falsifying business records, which he has pleaded not guilty to—to be moved to a federal court in Manhattan as the case “involves important federal questions,” including alleged violations of federal election law.
In April, Trump became the first U.S. president in history to be charged with a crime over allegations of falsifying business records in connection with a $130,000 payment that Trump arranged for his former attorney, Michael Cohen to pay adult film star Stormy Daniels ahead of the 2016 election to keep quiet about an alleged affair she had with the former president. Trump also denies having an affair with Daniels in 2006.
Prosecutors allege that the payment to Daniels amounted to a violation of election law as it was used to help his 2016 campaign.
A spokesperson for Trump told Newsweek that it is “imperative this case is tried fairly and moved to federal court because it is the most appropriate venue.”
Legal experts have pointed out that requests to move a case from a state to federal court are so rare as there are so few justifications to doing so.
In a tweet, legal analyst and former federal prosecutor Joyce Vance shared a blog post she wrote in February discussing how Trump could request such a move if he is criminally charged in Georgia, where he is being investigated in Fulton County for allegedly attempting to overturn the 2020 election results.
Vance said that Trump could cite a federal code which states people who can have their cases moved to federal court include officers of the United States or anyone acting under their direction “for or relating to any act under color of such office,” such as a president acting in their official capacity.
Trump has frequently argued he is immune from prosecution in the Georgia investigation, as well as the DoJ’s January 6 probe, because he was president at the time.
As Vance noted, such an argument could not be made in Trump’s falsifying business trial as “the law is the same, but the NY case is weaker because Trump wasn’t POTUS” at the time of the alleged offenses.
Michael McAuliffe, a former elected state attorney and federal prosecutor, told Newsweek that the request by Trump’s legal team “is simply another publicity balloon.”
“Any removal of a state criminal case to federal court is based on a specific federal statute. That statute is extremely narrow in scope,” McAuliffe told Newsweek.
McAuliffe added that there is scope for some federal officials to “seek removal of the state case to federal court,” if they are charged with state crimes.
“By the plain language of the statute, the Trump prosecution for business document fraud doesn’t apply. The public can wait and see what the motion filed in federal court states, but folks should not hold their breath about the outcome,” he added.
Other legal experts have suggested that the request to remove the trial is another delaying tactic by the former president, who is known to file legal requests and arguments to try to frustrate and delay proceedings against him.
“This effort is extremely unlikely to succeed,” Rebecca Roiphe, a professor at New York Law School, told the Associated Press. “It’s not even clear that this would be a particularly effective delay tactic.”
Marc Scholl, a former prosecutor in the Manhattan D.A.’s office, said it was more likely that the case would be sent back to state court.
“At the end of the day, New York is not trying to prosecute him for a federal crime or for anything he did in connection with his presidential duties,” Scholl told Reuters. “But it’s certainly a potential delaying tactic.”