Former President Donald Trump, conceding that he may be sent to prison in the midst of his election campaign, went to a federal court on Thursday night seeking to put off any sentencing for his 34 guilty verdicts in New York state court.
In a 64-page filing by his legal defense team, Trump asked a federal judge in New York City to take control of the state case and then overturn the verdicts and prevent any retrial on any of the 34 charges. This was the latest of several moves by Trump’s lawyers seeking to delay his sentencing until after this year’s presidential election.
The election is set for Tuesday, November 5. That is about nine weeks from now. Unless the issue is resolved swiftly in federal court, the election probably would be over before there was any chance that Trump’s sentencing would occur. That prospect may have figured in the timing of the new maneuver by the former President’s defense lawyers.
The move is based on a federal law, dating back to 1815, that allows a federal officer who is prosecuted by a state for a crime while carrying out federal duties to shift the case to a federal court for trial, to avoid the risk of local prejudice against the national government.
This is the second time that Trump’s lawyers have tried this legal maneuver to end the state prosecution of him on charges that he violated state and federal law during his 2016 presidential campaign by trying to cover up a sex scandal so that voters would not learn of it until after he had won election. Last year, a federal judge rejected the first such plea, and returned the case to the state court in Manhattan. A trial this year before State Judge Juan M. Merchan resulted last May in a jury verdict of guilty on all 34 charges.
In the new filing Thursday, Trump’s attorneys argued that he had “good cause” to try that maneuver again, because there have been three major U.S. Supreme Court decisions this year that, the filing said, changed entirely the legal circumstances of the prosecution in New York. These are the rulings relied upon in the new document:
• The Court’s July 1 decision, creating a broad new form of legal immunity for Presidents or former Presidents when prosecuted for actions taken while in office. Trump’s lawyers argued that most of the evidence used gainst him involved official acts for which he is immune.
• The June 28 ruling that gave federal courts sweeping new power to decide when federal government agencies have used more power than Congress had given them. The new filing contended that this decision undercuts a Federal Election Commission decision on federal election law that figured in the New York trial.
• The Court’s March 4 decision barring states from excluding Trump from this year’s presidential primary elections because of his role inciting the violent attack on the U.S. Capitol on January 6, 2021, seeking to overturn his defeat in the 2020 election. His lawyers asserted that this decision aids Trump’s protection against state interference in this year’s presidential election because the Court strictly limited state court power over federal candidates.
Under the old federal law on which the new filing relies, a federal government officer who succeeds in getting a state criminal case shifted to federal court is tried in that court on the state charges but with the special benefit of a legal defense based on federal law. For Trump, that defense is that the state trial of a President was unconstitutional under a variety of arguments, including the newly created legal immunity.
As of now, the judge in the New York case has scheduled a hearing for September 18 at which he will sentence Trump for the 34 convictions. The judge, though, must decide before then whether to grant aa pending request by Trump’s team to nullify all of the verdicts based on legal immunity. If that request is denied, sentencing would occur on the 18th. Trump may not necessarily be given a prison sentence, but a four-year sentence is one of the options open to Judge Merchan.
But that is exactly what Trump’s maneuver on Thursday was designed to prevent. The document argued: “An entirely unjust sentencing is currently scheduled to occur on September 18, which could result in President Trump’s immediate and unconstitutional incarceration and prevent him from continuing his ground-breaking [presidential] campaign….The ongoing proceedings will continue to cause direct and irreparable harm to President Trump…and [to] voters located far beyond Manhattan.”
If Trump succeeds in getting the case shifted to federal court, that apparently would bar Judge Merchan from going ahead in the meantime with the sentencing, although might not prevent the judge from ruling on the pending immunity plea by the Trump team.
Under the law governing shifts to federal courts in such cases, the federal judge is required to act promptly to grant or deny the shift. It is unclear how long it will take a federal judge to act on Trump’s new maneuver. The first time that was attempted, it took almost twelve weeks before U.S. District Judge Alvin K. Hellerstein ruled that the prosecution of Trump did not qualify for removal to a federal court.
Judge Hellerstein ruled at that time that the charges did not involve official presidential actions, and that there was little or no risk that the state trial would disrupt federal government operations. The judge also ruled that a claim of presidential immunity did not qualify as a defense to the state charges.
That decision by Judge Hellerstein, issued July 19 last year, occurred, of course, before the Supreme Court had made any of the three rulings on which Trump’s legal team is relying in the new legal move. Since Judge Hellerstein handled the previous move to shift the case, he is likely to have the new move assigned to him.