Former President Donald Trump is trying for a second time to have his New York criminal case taken over by federal court in order to block, or at least delay, his Sept. 18 sentencing on 34 counts he was convicted of in New York.
Trump's strategy is clear: By losing quickly in the lower courts, he hopes to steer the issue higher, perhaps all the way to the Supreme Court, the only panel with enough collusive power to rule in Trump's favor.
A federal court just dismissed the case, and now the Second Circuit Court of Appeals should take similar action to stop Trump's blatant manipulation. Ideally, the Supreme Court would follow suit.
A Manhattan jury found Trump guilty in May of 34 counts of falsifying business records in connection with the hush money payments. In 2023, before trial, Trump first sought to remove the case to federal court, which federal law allows federal employees to do if the alleged misconduct was in the course of their official duties. Judge Alvin Hellerstein, who served then and still serves today, said: Rulings against Trump He was the one who gave up appealing the matter at the time.
President Trump, who faces an impending trial, Court permission was sought The second attempt to impeach him has two grounds: first, that the bias of the state's presiding judge, Juan Merchan, led to an unfair trial, and second, that a July Supreme Court ruling gives Merchan presidential immunity for acts committed in official capacity.
Hellerstein Denied Trump's request was denied hours later, with the judge ruling that it would be “highly inappropriate” to evaluate Trump's claims about the fairness of the New York trial, claims that might be appropriate for review in a state superior court but do not support a transfer to federal court.
Judge Hellerstein also rejected Trump's argument for immunity from liability, which applies only to official acts. “The Supreme Court's decision does not affect my prior conclusion that hush payments were private, informal acts outside the scope of executive power,” he wrote.
The case went to the Second Circuit Court of Appeals, where Trump AppealedThis, too, should be dismissed, along with the others, as a matter already decided, or “res judicata.” As Hellerstein points out, Trump's impeachment request is based on the same argument he already lost: that his falsification of business records was somehow official.
Moreover, Trump could have argued the issue of absolute immunity before Hellerstein, but he did not. Even before Trump withdrew his appeal, the judge ruled that the former president “expressly waived any argument premised on the theory of absolute immunity.” There is no reason to revisit that decision now. And defendants generally cannot remove pending state cases to federal court merely by arguing, as Trump argues, that they had insufficient opportunity to defend their federal rights in state court.
The judges on the Second Circuit Court of Appeals who will hear these matters will not do Trump any favors: They are a far cry from Trump appointee Judge Eileen Cannon. Inappropriately The Florida documents lawsuit was dismissed, but as always, Trump is desperate to delay the process and avoid responsibility. Risk of going to prison Given The seriousness of his crime, Judgments in similar casesand his own history and character, including lack of remorse, contempt of court, and civil judgments.
Trump's sentence will almost certainly be delayed while the jury verdict is appealed, making it unlikely he will serve any time before 2025. But he has warned that he may be unable to serve any time in prison if the sentence is delayed. Serious damage This would make a presidential election less likely, as even a slight shift in voter support could lead to a major electoral defeat.
Trump knows he will lose in the Second Circuit just as he lost in Hellerstein's court. But his goal is to get the case to the Supreme Court, which recently granted Trump unfounded presidential immunity. Trump's strategy is to get the case to the friendliest court as quickly as possible and get the five votes to postpone the ruling.
One way the Second Circuit could counter Trump's procedural manipulation would be to delay the ruling by postponing it until September 18.
That doesn't mean Trump has no recourse: He could always make a desperate plea for the Supreme Court to intervene, arguing that lower courts have acted too slowly, but such an intervention would be highly unusual and clearly a political stunt.
It's also unclear whether Trump has the votes he needs to get onto the Supreme Court, which in May appointed Chief Justice John Roberts and other former top justices who have tried to salvage the court's reputation. Appeared “I've been less willing than some of my colleagues to fast-forward parts of the legal process just to get to a particular result,” he said, joining Justices Thomas, Alito, Gorsuch and Kavanaugh in rescuing Trump. But their egregious exoneration decision shows there may be no limit to what Trump's Supreme Court justices will do to save him.
American voters have a right to fully understand the gravity of Trump's crimes before the 2024 election. The New York court's ruling will be crucial to that understanding. Trump's September sentencing must proceed as scheduled. Therefore, the Second Circuit should not only reject Trump's delaying tactics, but do so in a way that prevents his Supreme Court defenders from granting him relief.
Norman Eisen is a former ambassador to the Czech Republic and a senior fellow in governance studies at the Brookings Institution, an expert on law, ethics and anti-corruption, and a CNN legal analyst.
