The Supreme Court’s grant of legal immunity to President Trump last year is working for him again. A federal appeals court on Thursday allowed Trump to use that ruling anew in his prolonged effort to undo his criminal conviction.
A state court jury’s unanimous guilty verdict on 34 charges against Trump 17 months ago was his only conviction although at one time he faced the prospect of trial in three other criminal cases, most of which have ended or been put on hold as a result of his reelection in 2024.
That verdict came on charges that Trump falsified records of his business to cover up a payment of $130,000 to an adult firm star to keep her from revealing publicly during his presidential campaign that they had had a sexual encounter. The payments were made for Trump by his lawyer, Michael Cohen.
But the New York guilty verdict has been under challenge by Trump and his legal team, in state court and in federal court, at the same time. Trump’s appeal in state courts of his conviction is still developing.
Thursday’s ruling by a federal appeals court that sits in New York City revives, at least temporarily, Trump’s attempt to get a new trial on the state charges but, this time, in a federal court that his Justice Department will have the power to take over and, possibly, to nullify the charges.
There is a chance, however, that the case might not turn out as Trump wants, because it is not clear that the old law that might open the way to federal court even applies when the federal official has been put on trial and found guilty. That aspect of the case remains unresolved at this point.
Under a 210-year-old federal law, passed initially to stop states from prosecuting federal officials as they sought to enforce customs laws, a federal official can have such a case transferred to federal court if that officer has been prosecuted for acting on official duties and can mount a serious defense based upon federal law. Trump has tried repeatedly to take advantage of that law, but has been frustrated each time, in state and federal courts.
His defense, if the case moves to federal court, will be centered on the Supreme Court’s ruling in July 2024 that he had immunity to criminal prosecution for any use of his “official” presidential powers. Although the New York state prosecution was tied to actions that Trump was accused of taking before he became President in 2016, his lawyers have argued that state prosecutors used against him at the trial several pieces of evidence involving actions occurring after he was in office, and the Supreme Court ruling forbids that.
In its 28-page ruling Thursday, the federal appeals court did not decide that challenge itself, but instead sent the case back to a federal trial court in New York City to reconsider Trump’s plea to transfer the case out of state court. A senior judge in that case, District Judge Alvin Hellerstein, has several times rebuffed Trump’s effort. Hellerstein has ruled several times that there was no link between the state charges and any of Trump’s official duties. Paying off an adult film star does not meet the test, the judge has ruled.
The appeals court, however, said the judge had failed to examine fully the implications of the Supreme Court’s immunity decision.
If it turns out that there was a link in evidence between Trump’s actions while in office and his official duties, that could implicate his immunity, the appeals court found. That needs to be explored carefully by Judge Hellerstein, it declared.
The three pieces of evidence that might provide the link to Trump’s official duties related to a possible investigation of the payment by the Federal Election Commission that enforces federal campaign finance law, a conviction in the White House Oval Office between Trump and his aide Hope Hicks in her official role as director of communications, and a comment about official business that Trump had made while President on his online account.
It is now Judge Hellerstein’s task of examining that evidence, looking for potential link to immunized official conduct. Because the ruling Thursday was by a three-judge panel, the state prosecutors in the case have the option of seeking rehearing before the full bench of that appeals court. The case, of course, might eventually go to the Supreme Court, too.
Technically, Judge Hellerstein is now charged with deciding several related legal issues, including whether Trump delayed too long in making his move to try to get the case moved to federal court, and whether Trump had shown a sufficient reason for any delay in seeking removal.
The one overriding issue that the appeals court opinion noted, but not decide, was whether the 1815 law on removal of federal officer cases from state to federal court is even available if that officer has already gone to trial, been convicted, and sentenced. (Trump has gone through all three of those phases; his sentence was not prison time, but an official discharge from any potential punishment for his crimes.)
Trump, of course, is ultimately seeking to have his record cleared of any guilty verdicts, to validate his claim that all of the prosecutions against him were motivated by politics and his political enemies. He has left no doubt that his lawyers will be taking every step available to them to erase the verdicts.
