Former President Trump’s attorneys on Monday made their latest bid at moving his hush money criminal case to federal court, telling an appeals panel that a lower judge’s refusal to do so was “rushed” and “profoundly flawed.”
Trump previously hoped to move courts to derail his sentencing, but the gambit has so far proved unsuccessful.
A ruling on Trump’s latest appeal before the 2nd U.S. Circuit Court of Appeals is not expected until after his Nov. 26 sentencing. Even so, the former president expressed a desire to still resolve questions of presidential immunity and other issues in a federal forum, rather than state court.
“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,” Trump attorneys Emil Bove and Todd Blanche wrote in Monday’s brief.
Trump's attempt to move courts, a process known as removal, has become procedurally complex. It requires a federal official to show they are being prosecuted for an act taken “under color” of their office and they will raise a plausible federal defense.
The former president made his first bid at removing the case upon being charged last year. But after a judge rejected it, Trump abandoned his appeal.
His case then proceeded to trial in New York state court this spring, when a jury convicted Trump on all 34 felony counts of falsifying business records for illegally covering up a hush money payment to adult film star Stormy Daniels in 2016 with the intent of unlawfully influencing the presidential election.
This summer, as he stared down an impending sentencing, the former president began mounting a second attempt at moving courts.
Though the normal deadline to seek removal long passed, it can be waived if Trump shows “good cause.” A federal district judge rejected Trump’s arguments of why the normal deadline should be ignored, and the former president is now appealing that denial to the 2nd Circuit.
Among other things, he is latching onto the Supreme Court’s ruling in July carving out at least presumptive immunity for former presidents’ official acts as reason to reopen the issue.
In Monday’s filing, Trump’s lawyers again raised concerns about New York Acting Justice Juan Merchan, who oversaw the trial, condemning the gag order he issued for Trump and taking issue with the judge’s daughter’s employment at a digital firm that does work for prominent Democrats. Merchan and state appeals courts refused Trump’s multiple requests for recusal.
Merchan is set to rule whether the Supreme Court’s presidential immunity decision requires the jury’s verdict to be wiped on Nov. 12. It was originally scheduled for earlier, but the judge pushed his decision and the sentencing until after the election to avoid any appearance of political motivation.
“President Trump's efforts to litigate that defense in New York County have been severely undermined by conflicts of interest and appearances of impropriety faced by Justice Merchan, including evidence of judicial bias toward President Trump's use of Twitter, which is one of the main types of evidence subject to the Presidential immunity defense,” Trump’s brief reads.
The Manhattan district attorney’s office, which is prosecuting the case, has not yet responded to the latest request. But they have repeatedly opposed his efforts to move courts and derail the proceedings.
