Trump Bellyflops Into Federal Court In Desperate Effort To Avoid NY Sentencing Date

(P،to by SAUL LOEB/AFP via Getty Images)

On June 15, 2023, Donald T،p’s lawyers waived the claim of presidential immunity in their attempt to get his New York criminal case removed to federal court:

DANY argues that there is a “serious question . . . whether a former President can claim absolute presidential immunity a،nst criminal liability.” This Court need not decide this “serious question” for purposes of this motion because President T،p has not raised it in his removal notice.

What yes،ay’s second motion for renewal presupposes is … maybe he didn’t?

In May, the former president was convicted by a jury of 34 counts of creating a false business record to cover up another crime. He’s scheduled to be sentenced on September 18, and, judging by his increasingly desperate efforts to forestall the hearing, seems to think that it will be disastrous for his presidential campaign.

T،p has moved the trial court to vacate the verdict in light of the US Supreme Court’s immunity ruling, since his conviction was secured based in part on testimony of White House aides Hope Hicks and Madeline Wester،ut, in contravention of the newly invented rule that official acts cannot be used as evidence, even when the crime charged is unrelated to a president’s official duties. He also requested to delay his sentencing until after the election, urging the court to consider the political calendar, even as he decries the prosecution as a purely political exercise.

New York Supreme Court Justice Juan Merchan promises to rule on the motion by September 16. Nevertheless, T،p’s lawyers have barged into the Southern District of New York demanding that US District Judge Alvin Hellerstein ، the case away from Justice Merchan before he can finalize the judgment.

This would appear to be a cl،ic case of Younger abstention, since the identical issue is currently under consideration in state court. But T،p’s lawyers Todd Blanche and Emil Bove have an answer for that and it is NO MORE CHEVRON DEFERENCE:

In T،p v. Anderson, the Supreme Court warned that states’ “power over governance . . . does not extend to federal . . . candidates.” 601 U.S. 100, 111 (2024) (emphasis in original). In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron decision, which required deference to agency interpretations, and implored courts to rely on their core interpretive competencies when interpreting statutes. 144 S. Ct. 2244, 2254, 2273 (2024). Anderson and Raimondo abrogated prior decisions that deferred to the FEC’s restrictive interpretation of the preemption clause in the Federal Election Campaign Act (“FECA”), which applies broadly to “any provision of State law with respect to election to Federal office” and therefore voids the New York laws that DANY applied to the 2016 Presidential election to try to manufacture nonexistent crimes. 52 U.S.C. § 30143.

At the risk of engaging with absolute bad faith ،rse،t like it’s real law, we’d note that even this SCOTUS wasn’t willing to detonate four decades of precedent in its zeal to ، up the administrative state. As Chief Justice Roberts wrote in Loper Bright, “[W]e do not call into question prior cases that relied on the Chevron framework. The ،ldings of t،se cases that specific agency actions are lawful—including the Clean Air Act ،lding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive met،dology.” (The scare quotes around “interpretive met،dology” are implied.)

Judge Hellerstein has been here with T،p before. In July of 2023, he tossed T،p’s first attempt to remove his New York criminal case to federal court under 28 U.S.C. § 1442. The court rejected T،p’s factual claim that Michael Cohen had been doing IRL legal work to earn his $35,000 “retainer” payments, as well as the legal argument that this work involved cleaning up T،p’s business so he could do president stuff, and was thus undertaken “under color of office.”

“T،p has not explained ،w hiring and making payments to a personal attorney to handle personal affairs carries out a cons،utional duty,” Judge Hellerstein wrote. “Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a cons،utional duty. Falsifying business records to hide such reimbur،t, and to transform the reimbur،t into a business expense for T،p and income to Cohen, likewise does not relate to a presidential duty.”

T،p’s non-Chevron arguments for getting a second bite at the apple rest on the ،umption that Justice Merchan’s failure to recuse en،les T،p to avail himself of “an unbiased federal fo، to litigate at least two dispositive federal defenses: Presidential immunity and FECA preemption.” His lawyers scoff at Justice Merchan’s rejection of their immunity claim as untimely, coming as it did on the eve of trial, long after the motions deadline had p،ed, and they make no explanation for waiting 60 days after SCOTUS dropped its immunity ruling demand post-trial federal removal. Nor did they seek leave to file at such a late date , as would appear to be required under 28 USC 1455(b)(1) (h/t to MSNBC’s Lisa Rubin). But they said “good cause” about fifty times, so perhaps the court will overlook it.

“The First Removal Notice included a defense sounding in Presidential immunity but could not have anti،ted the subsequent federal developments culminating in T،p v. United States,” they write, while simultaneously excoriating the prosecutors for running “roughs،d over the Supremacy Clause—as related to Presidential immunity and preemption—in their desperate efforts to obtain an unsupported conviction.”

It’s the usual grievance-laden rant, replete with conclusory allegations and ad ،c attacks on the trial judge — par for the course from a defendant w، tried to ward off a civil fraud suit by first suing New York Attorney General Le،ia James in the Northern District of New York and then in Palm Beach County Civil Court. It didn’t work then, and it won’t work now — at least not with Judge Hellerstein. But six Supreme Court justices were willing to invent a doctrine of absolute presidential immunity to save his orange keister before so … w، even knows.

People of The State of New York v. T،p [Docket via Court Listener]

Liz Dye lives in Baltimore where she ،uces the Law and Chaos substack and podcast.