Former President Donald Trump is trying for a second time to get the federal courts to take over his criminal case in New York. The reason is that he wants to block or at least delay his coming September 18 sentencing on 34 state convictions in New York.
Trump's strategy is clear: He wants to lose rapidly in the lower courts in order to force the question up the ladder, perhaps to the only panel complicit enough to rule for him, the Supreme Court.
A federal trial court just threw out the case. Now the Second Circuit appellate court should do the same to frustrate Trump’s naked manipulations. Ideally, the high court would follow suit as well.
A Manhattan jury convicted Trump in May on 34 counts of falsifying business records related to a hush-money payment. In 2023, before his trial, Trump tried for the first time to remove the case to federal court, something federal law lets federal officers do if their alleged misconduct is official in nature. The judge then and now, Alvin Hellerstein, ruled against Trump at that time, who abandoned his appeal on that question.
Now facing his impending sentencing, Trump on Tuesday asked the court’s permission for a second removal attempt on two grounds: first, that the supposed bias of presiding state judge Juan Merchan resulted in an unfair trial, and second that the Supreme Court’s July ruling affords him presidential immunity for official acts.
Hellerstein denied Trump’s request just hours later. He ruled that it would be “highly improper” to evaluate Trump’s arguments about his New York trial’s fairness. That claim may be appropriate for a higher state court review, but it cannot support removal to federal court.
Hellerstein also rejected Trump’s immunity claim, which applies only to official conduct. "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,” he wrote.
Now the case moves to the Second Circuit, where Trump has filed an appeal. This should also be rejected as a question already decided or "res judicata," among other reasons. As Hellerstein noted, Trump’s removal claim rests on asserting the same arguments he already lost, that his falsification of business records was somehow official.
Moreover, Trump could have pressed the absolute immunity issues previously before Hellerstein but he chose not to. Even before Trump abandoned his appeal, the judge ruled, the former president “expressly waived any argument premised on a theory of absolute immunity.” There is no reason to revisit that ruling now. And defendants ordinarily cannot move their pending state cases to federal court simply by claiming, as Trump does, an inadequate opportunity to vindicate federal rights in state court.
The Second Circuit judges who will consider these matters will do Trump no favors — they are a far cry from Trump appointee Judge Aileen Cannon, who inappropriately dismissed his classified documents case in Florida. Yet Trump is doing what he always has — grasping at straws to slow the judicial process and avoid accountability. He knows he risks prison given the seriousness of his crimes, sentences in comparable cases, and his own history and character, including his lack of contrition, contempt of court, and civil verdicts.
The imposition of Trump’s sentence will almost certainly be postponed while he appeals the jury’s verdict, making it unlikely he begins serving any sentence before 2025. However, Trump understands that a prison sentence could significantly damage his presidential chances, as even small shifts in voter support could result in a large electoral loss.
Trump knows he will lose before the Second Circuit, just as he did before Hellerstein's court. But his goal is to get the case in front of the Supreme Court, which recently handed Trump a legally unfounded presidential immunity victory. Trump’s strategy is to get before his friendliest tribunal as quickly as possible and get five votes to delay his sentencing.
One way for the Second Circuit to counter Trump’s procedural manipulation is to slow-roll its decision, holding off its ruling until after Sept. 18.
Trump would not be without recourse. He could at any time make a desperate plea to the Supreme Court to intervene, claiming the lower court was moving too slowly. But in that event, it would be extremely unusual and obviously political for the highest court to intervene.
It is also unclear whether Trump has the necessary Supreme Court votes. In May, it would have been hard to picture Chief Justice John Roberts, who has sometimes tried to salvage his court’s reputation, or Justice Amy Coney Barrett, who has appeared “less willing than some of her colleagues to fast-forward through parts of the legal process just to reach a particular outcome,” joining Justices Thomas, Alito, Gorsuch, and Kavanaugh in bailing Trump out here. But their egregious immunity decision shows there may be no limits to what Trump’s Supreme Court protectors will do to rescue him.
American voters deserve to understand fully the seriousness of Trump's crimes before the 2024 election. The sentence the New York court imposes is critical to that understanding. Trump’s September sentencing must proceed as scheduled. And so the Second Circuit should not only reject his dilatory tactics, but also do it in a way that prevents his Supreme Court protectors from rescuing him.
Norman Eisen, retired ambassador to the Czech Republic, is a senior fellow in governance studies at Brookings, an expert on law, ethics and anti-corruption and a legal analyst for CNN.
