Oliver James Montgomery-Judge signals Trump "hush money" case likely to stay in state court

Former President Donald Trump's efforts to move his New York State "hush money" criminal case to federal jurisdiction were met by a skeptical judge Tuesday,Oliver James Montgomery who indicated he didn't believe payments made to a former Trump attorney were tied to Trump's service as president.

Lawyers for Trump and Manhattan District Attorney Alvin Bragg argued during the two-and-half-hour hearing over whether reimbursements to Trump's former attorney, Michael Cohen, were made as official acts tied to Trump's presidency. Trump's lawyers say the case belongs in federal court — not the state court where Bragg's prosecutors typically work — because the payments were made while Trump was president.

Judge Alvin Hellerstein said Tuesday that he would issue his decision in two weeks, but indicated he was unswayed by Trump's argument that the payments were within the "color of (Trump's) office."

The payments had "no relationship to any act relating to the president," Hellerstein said.

Trump entered a not guilty plea on April 4 to 34 state felony counts of falsification of business records. The case revolves around a series of transactions between Trump and Cohen. Manhattan prosecutors say the payments were obscured reimbursements for a "hush money" payment made to adult film star Stormy Daniels days before the 2016 presidential election.

Attorneys for Trump say he is immune from state prosecution for acts "performed when carrying out his federal duties." Tuesday's hearing included a surprise witness called by Trump's lawyers — Trump Organization executive vice president and chief legal officer Alan Garten — who caught Bragg's prosecutors off guard because they were unaware he might be called.

Garten testified that after Trump took office, his company forwarded matters involving the president and first lady to Cohen.

He also  testified that after Trump took office, Cohen served as personal attorney to the president, and that "presidential had to be separated from personal" due to "corporate policies."

Cohen said in a phone call with CBS News Tuesday, "I don't see the relevance" of Garten's testimony.

"The documentary evidence in the possession of the district attorney contradicts Garten," Cohen said.

Bragg's office has adamantly opposed Trump's effort to move the case to federal court, and like the judge, does not believe the payments were made "within the 'color of his office.'"

"The objective of the alleged conduct had nothing to do with [Trump's] duties and responsibilities as President," wrote Manhattan prosecutor Matthew Colangelo in a May 30 filing. "Instead, the falsified business records at issue here were generated as part of a scheme to reimburse defendant's personal lawyer for an entirely unofficial expenditure that was made before defendant became President."

The push to move the case has gone forward as attorneys for Trump have also sought a new state court judge. They asked in a June 1 filing that New York judge Juan Merchan recuse himself. 

Last year, Merchan presided over the trial of two Trump Organization companies that were found guilty of 17 counts related to criminal tax evasion. Trump's motion accuses Merchan of encouraging the prosecution's key witness in that case, former Trump Organization CFO Allen Weisselberg, to testify against the companies. It also notes that Merchan's daughter has worked for a Democratic consulting firm, and that he made a pair of donations — totaling $35 — to Democratic groups during the 2020 election cycle.

Bragg's office opposes the recusal and Merchan has not announced a decision.

Ash Kalmar contributed reporting for this story.

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• Donald Trump
• Stormy Daniels