(NEW YORK) — Former President Donald Trump has again asked an appeals court to transfer his New York criminal hush money case to federal court, reigniting an effort to stall his sentencing or throw out his conviction on 34 felony courts.
In a filing on late Monday, Trump’s lawyers asked the New York-based U.S. Court of Appeals for the Second Circuit to reconsider a lower court’s September decision denying the former president’s attempt to remove the state case to federal court.
Defense lawyers argued in the filing that the jury in the case improperly saw evidence of Trump’s official acts as president which would have been protected by the Supreme Court’s July ruling on presidential immunity.
“This case presents complex first-impression issues relating to the Supremacy Clause, federal-officer removal, appearances of impropriety and conflicts in connection with an unprecedented and baseless prosecution of the leading candidate in the 2024 Presidential election, and the ability of future Presidents to serve the American people without fear of reprisal from hostile local officials,” lawyers Todd Blanche and Emil Bove wrote in the 99-page filing.
Trump was found guilty in May on 34 felony counts of falsifying business records related to a hush money payment to adult film actress Stormy Daniels in order to boost his electoral prospects in the 2016 presidential election.
In July, the Supreme Court ruled in a blockbuster decision that Trump is entitled to immunity from criminal prosecution for official acts undertaken while in office.
Criminal or civil cases against federal officials can be removed to federal court if the officials can prove the case centers on official conduct. When Trump sought to remove his hush money case to federal court in 2023 by arguing that the allegations related to his official acts as president, U.S. District Judge Alvin Hellerstein denied the move, writing that “hush money paid to an adult film star is not related to a President’s official acts.”
Judge Hellerstein then denied Trump’s request to reconsider his decision in September, as Trump was seeking to delay his sentencing, because the former president failed to show “good cause” for why the issue should be examined again.
“Nothing in the Supreme Court’s opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority,” Judge Hellerstein wrote.
Trump is now appealing Hellerstein’s September decision, which defense lawyers argue relied on a “profoundly flawed analysis.”
Trump is scheduled to be sentenced on Nov. 26, after the New York judge overseeing the case, Juan Merchan, granted Trump’s request to delay sentencing until after the November election.
In their filing Monday, Trump’s lawyers also aired grievances about an alleged conflict of interest by Judge Merchan and political motivations of the prosecutors, writing that witnesses “concocted the type of false and implausible story President Trump’s political opponents wanted to hear.”
If the effort to remove the case to federal court is successful, it could give Trump the authority to kill the prosecution if he is elected to the presidency in November. Unlike his federal criminal cases, Trump is unable to direct the prosecution or pardon himself if the case remains in state court.
The removal attempt could also impact the timing of Trump’s Nov. 26 sentencing if the motion remains unresolved by then.
Separately, Judge Merchan is expected to issue a ruling on Trump’s effort to throw out the conviction based on presidential immunity by Nov. 12.
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