CNN
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Five months after President Donald Trump was sentenced without penalty in the New York hush money case, his attorneys will square off again with prosecutors Wednesday in one of the first major tests of the Supreme Court’s landmark presidential immunity decision.
Trump is relying heavily on the high court’s divisive 6-3 immunity ruling from July in a long-shot bid to get his conviction reviewed – and ultimately overturned – by federal courts. After being convicted on 34 counts of falsifying business records, Trump in January became the first felon to ascend to the presidency in US history.
Even after Trump was reelected and federal courts became flooded with litigation tied to his second term, the appeals in the hush money case have chugged forward in multiple courts. A three-judge panel of the 2nd US Circuit Court of Appeals – all named to the bench by Democratic presidents – will hear arguments Wednesday in one of those cases.
Trump will be represented on Wednesday by Jeffrey Wall, a private lawyer and Supreme Court litigator who served as acting solicitor general during Trump’s first administration. Many of the lawyers who served on Trump’s defense team in the hush money case have since taken top jobs within the Justice Department.
The case stems from the 2023 indictment announced by Manhattan District Attorney Alvin Bragg, a Democrat, who accused Trump of falsely categorizing payments he said were made to quash unflattering stories during the 2016 election.
Trump was 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.)
Trump was ultimately convicted last year and was sentenced without penalty in January, days before he took office.
The president is now attempting to move that case to federal court, where he is betting he’ll have an easier shot at arguing that the Supreme Court’s immunity decision in July will help him overturn the conviction. Trump’s earlier attempts to move the case to federal court have been unsuccessful.
US District Judge Alvin Hellerstein, nominated by President Bill Clinton, denied the request in September – keeping Trump’s case in New York courts instead. The 2nd Circuit will now hear arguments on Trump’s appeal of that decision on Wednesday.
“He’s lost already several times in the state courts,” said David Shapiro, a former prosecutor and now a lecturer at John Jay College of Criminal Justice. And Trump’s long-running battle with New York Judge Juan Merchan, Shapiro said, has “just simmered up through the system” in New York courts in a way that may have convinced Trump that federal courts will be more receptive.
Trump, who frequently complained about Merchan, has said he wants his case heard in an “unbiased federal forum.”
Trump’s argument hangs largely on a technical but hotly debated section of the Supreme Court’s immunity decision last year. Broadly, that decision granted former presidents “at least presumptive” immunity for official acts and “absolute immunity” when presidents were exercising their constitutional powers.
State prosecutors say the hush money payments were a private matter – not official acts of the president – and so they are not covered by immunity.
But the Supreme Court’s decision also barred prosecutors from attempting to show a jury evidence concerning a president’s official acts, even if they are pursuing alleged crimes involving that president’s private conduct. Without that prohibition, 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.
Trump is arguing that is exactly what Bragg did when he called White House officials such as former communications director Hope Hicks and former executive assistant Madeleine Westerhout to testify at his trial.
Hicks had testified that Trump felt it would “have been bad to have that story come out before the election,” which prosecutors later described as the “nail” in the coffin of the president’s defense.
Trump’s attorneys are also pointing to social media posts the president sent in 2018 denying the Daniels hush money scheme as official statements that should not have been used in the trial.
State prosecutors “introduced into evidence and asked the jury to scrutinize President Trump’s official presidential acts,” Trump’s attorneys told the appeals court in a filing last month. “One month after trial, the Supreme Court unequivocally recognized an immunity prohibiting the use of such acts as evidence at any trial of a former president.”
A White House spokesperson did not respond to a request for comment.
If Trump’s case is ultimately reviewed by federal courts, that would not change his state law conviction into a federal conviction. Trump would not be able to pardon himself just because a federal court reviews the case.
Bragg’s office countered that it’s too late for federal courts to intervene.
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.
But in this case, Bragg’s office argued, Trump has already been convicted and sentenced. That means, prosecutors said, there’s really nothing left for federal courts to do.
“Because final judgment has been entered and the state criminal action has concluded, there is nothing to remove to federal district court,” prosecutors told the 2nd Circuit in January.
Even if that’s not true, they said, seeking testimony from a White House adviser about purely private acts doesn’t conflict with the Supreme Court’s ruling in last year’s immunity case.
Bragg’s office has pointed to a Supreme Court ruling as well: the 5-4 decision in January that allowed Trump to be sentenced in the hush money case. The president raised many of the same concerns about evidence when he attempted to halt that sentencing before the inauguration. A majority of the Supreme Court balked at that argument in a single sentence that, effectively, said Trump could raise those concerns when he appeals his conviction. That appeal remains pending in state court.
“The alleged evidentiary violations at President-elect Trump’s state-court trial,” the Supreme Court wrote, “can be addressed in the ordinary course on appeal.”
