Former President Donald Trump on Tuesday failed in his latest attempt to prevent a state judge in New York from imposing a sentence for the 34 guilty verdicts arising out of a sex scandal surrounding his presidential election campaign in 2016.
In a brief, four-page ruling, a federal judge in New York City refused to allow Trump’s lawyers to file a new request for a federal court to take control of the case, block his sentencing, dismiss the case and bar any re-trial in state court.
As of now, a hearing in state court in New York to consider a sentence – including the possibility of a prison sentence – is scheduled for September 18. Trump may face up to four years in prison for each of the 34 counts, but imprisonment or some other punishment is up to the judge. Persons convicted for the first time and for crimes not involving violence seldom get prison terms. However, imposition of any sentence would be a highly visible political setback for Trump as he continues his candidacy for election in November.
Tuesday’s action to leave the September 18 sentencing hearing undisturbed came in federal court, by U.S. District Judge Alvin K. Hellerstein. It was the second time that the judge had refused to allow the transfer of the case to his court – a transfer that would have stalled almost all further actions in the state case in which Trump was convicted. An 1815 federal law protects federal government officers from being prosecuted in state court for crimes committed while performing official duties. Judge Hellerstein turned down Trump’s first transfer request in July of last year.
In renewing the request last month, Trump’s legal team contended that circumstances had changed in recent months, and noted specifically that the U.S. Supreme Court on July 1 had issued a sweeping new constitutional decision giving Presidents immunity to criminal prosecution.
Although that new ruling came months after Judge Hellerstein had first blocked the case from moving to his court, the judge again rejected the immunity claim, as he did in the first ruling 13 months ago. The judge declared in both rulings that actions by Trump at the core of the New York state case – paying off an adult movie star to prevent Trump’s sexual encounter with her from public disclosure during his 2016 campaign – was not an official act. The Supreme Court decision provided the broadest legal immunity for Presidents for crimes based on official actions while in the White House.
The jury in the state case convicted Trump in May of 34 serious crimes under state and federal law in a headline-making trial that came to be known as the “hush money” case. In Tuesday’s ruling, Judge Hellerstein wrote that, although Trump was in the White House when he wrote checks for the payoff, “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.”
Besides turning aside the immunity claim, Judge Hellerstein ruled that he had no authority, as a federal judge, to consider two other legal claims by Trump: that the trial judge in New York and the state courts were biased against him, and that the September 18 sentencing hearing must be blocked. Those types of legal issues are for the state courts to decide, the judge decided.
It is not clear whether Trump has a legal right to appeal Judge Hellerstein’s new ruling to higher federal courts, including the Supreme Court.
While losing his immunity plea on Tuesday, Trump is still pursuing that same claim – based on the Supreme Court’s July 1 decision – in a pending motion asking the trial judge to dismiss the case and prevent its retrial on immunity grounds. Judge Juan M. Merchan has been weighing that issue, and plans to rule on it by September 16. If he were to uphold the immunity claim, the case would end, the verdicts would be overturned and no sentence would be imposed.
Trump would retain the right to appeal to higher state courts and to the Supreme Court if Judge Merchan rejects the immunity argument.
