A federal appeals court in New York wrangled Wednesday with President Donald Trump’s claim that his hush money conviction should be reviewed by federal courts and seemed open to the idea that the Supreme Court’s landmark immunity decision may weigh in the president’s favor.
“It seems to me that we got a very big case that created a whole new world of presidential immunity,” US Circuit Judge Myrna Pérez, who was nominated to the bench by President Joe Biden, said at one point during oral arguments. “The boundaries are not clear at this point.”
At issue is whether Trump can move his state court case on 34 counts of falsifying business records to federal court, where he hopes to argue that prosecutors violated the Supreme Court’s immunity decision last year by using certain evidence against him, including testimony from former White House Communications Director Hope Hicks.
“The scope of a federal constitutional immunity for the president of the United States should be decided by this court and the Supreme Court, not by New York state courts,” said Jeffrey Wall, a former acting US solicitor general who is representing Trump in the case. “Everything about this cries out for federal court.”
The Supreme Court’s decision last year granted Trump immunity from criminal prosecution for his official acts and barred prosecutors from attempting to enter evidence about them, even if they are pursuing alleged crimes involving that president’s private conduct.
Without that prohibition on evidence, the Supreme Court reasoned, a prosecutor could “eviscerate the immunity” the court recognized by allowing a jury to second-guess a president’s official acts.
And so, the underlying question is whether prosecutors crossed that line by including the testimony from Hicks and former executive assistant Madeleine Westerhout, as well as a series of social media posts Trump authored during his first term criticizing the hush money case.
The three-judge panel of the New York-based 2nd US Circuit Court of Appeals, all appointed by Democratic presidents, asked probing questions of both sides and it wasn’t clear after more than an hour of arguments how they would decide the case. The judges pressed the attorney representing Manhattan District Attorney Alvin Bragg on why the Supreme Court’s decision last year didn’t preclude the evidence at issue in the case.
“The Supreme Court used very broad language in talking about evidentiary immunity,” noted Circuit Judge Susan Carney.
Bragg’s office has countered that it’s too late for federal courts to intervene. That’s because Trump was already convicted and sentenced. Prosecutors have also argued that the evidence at issue wasn’t the kind the Supreme Court was referring to. Hicks may have been a White House official when she testified, they said, but she was speaking about actions Trump took in a private capacity.
“The fact that we are now past the point of sentencing would be a compelling reason to find no ‘good cause’ for removal,” said Steven Wu, who was representing Bragg.
Federal officials facing prosecution in state courts may move their cases to federal court in many circumstances under a 19th century law designed to ensure states don’t attempt to prosecute them for conduct performed “under color” of a US office or agency. A federal government worker, for instance, might seek to have a case moved to federal court if they are sued after getting into a car accident while driving on the job.
Wu analogized Trump’s argument to a postal worker who commits a crime on the weekend and then confesses to his boss at work on Monday. The confession, even though it happened in a post office, doesn’t suddenly convert the content of the conversation to an official US Postal Service action.
“The criminal charges were private and unofficial conduct,” Wu said.
Trump was ultimately sentenced in January without penalty.
He had been accused of falsifying a payment to his former lawyer, Michael Cohen, to cover up a $130,000 payment Cohen made to adult-film star Stormy Daniels to keep her from speaking out before the 2016 election about an alleged affair with Trump. (Trump has denied the affair.)
US District Judge Alvin Hellerstein, nominated to the bench by President Bill Clinton, denied Trump’s request to move the case to federal court – keeping his appeals instead in New York courts. Trump, who frequently complained about the New York trial court judge in his case, Juan Merchan, has said he wants his case heard in an “unbiased federal forum.”
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