In arguing otherwise, Trump has insisted that his payments to Cohen were made in his official capacity because he retained Cohen as his “personal lawyer” and he transitioned his business interests (whose records are at issue) into a pre-existing trust only because he was president. Even if true, those contentions cannot possibly support a conclusion that the charged conduct was taken in Trump’s official capacity. The role and responsibilities of the president are vast, but they are not without limit. As the Supreme Court has explained, there is an “outer perimeter” to the presidential role, beyond which the occupant of the presidency acts in a personal or “unofficial” capacity. And the very fact of Trump’s decision to retain Cohen as his personallawyer reflects that it falls on the unofficial side of the line.

If this were not the case, there would be no effective limit to the president’s role. If Trump’s claim that he retained Cohen and put his businesses into a trust only because he was president were enough to place those actions within his official role, then virtually every action taken by a president while in office, whether appropriate or inappropriate, would likely fall within that role. That would yield an unlimited conception of the presidency, which has no basis in law.

If Trump’s attempted removal is without merit, why bother? We can only speculate about his motives, but one possibility is that it is simply an attempt at delay. After all, an even more implausible effort to have a special master appointed in the Mar-a-Lago documents investigation temporarily succeeded, slowing it down for months before an appellate court finally intervened. In this case, although the New York state court may take steps to proceed with the case while Trump’s attempted removal is pending, he cannot be convicted until the removal is denied. And given the typical pace of federal litigation, that could take time. The closer we get to the 2024 election, the more Trump will argue that any movement in his case should be delayed until after the election. And if, as expected, Trump is indicted this summer in Fulton County, Georgia, for his alleged attempts to interfere with the administration of the 2020 presidential election in that state, he may try to use the same set of delay tactics there.

This would not be the first time a litigant has pressed dubious legal arguments merely for purposes of delay. But it should not be allowed to happen. If for no other reason, voters participating in the 2024 election (and Republicans participating in the primary process before that) should be able to know whether Trump is guilty of the charged offenses before making their choice.

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That is still possible. The federal judge handling the New York removal, Alvin Hellerstein, has scheduled a hearing on the matter for the end of June. Given the weakness of Trump’s removal argument and the strength of Bragg’s opposition to it, the judge should not need much time to deny it and to order the case remanded to state court. Assuming Trump appeals, the court of appeals (and the Supreme Court if necessary) should set an accelerated schedule and adjudicate it on an expedited basis. It is possible for all of that to happen before the trial starts in March 2024, as currently planned.

Like any other criminal defendant, Trump is entitled to the presumption of innocence. He cannot be convicted at trial unless a jury unanimously concludes the prosecution has proven his guilt beyond a reasonable doubt. Those bedrock constitutional protections apply in state courts and federal courts alike, and Trump’s trial must uphold them. But it is a trial that should take place in New York state court, before a New York state judge and jury. And it should happen without delay.

• Donald Trump
• New York City
• Michael Cohen
• Georgia
• Trump Trials

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