Donald Trump's lawyers pushed Monday to transfer to federal court the case in which he was convicted in a New York state court on charges involving covering up a payment paid to an adult film star, a move that would give him the ability to end the prosecution if he regains the presidency.
His lawyers renewed the request in a brief filed with the Manhattan-based 2nd U.S. Circuit Court of Appeals as they appealed U.S. District Judge Alvin Hellerstein's Sept. 3 ruling rejecting the shift to federal court. Trump was convicted in May of 34 felony counts of falsifying documents.
In their brief, Trump's lawyers cited the U.S. Supreme Court's July 1 decision that former presidents cannot be prosecuted for official actions taken in office. In the case, they said, jurors had improperly seen evidence of Trump's official acts as president.
His lawyers said the state charges intruded on the authority of the presidency under the U.S. Constitution.
Trump is the Republican candidate facing Democrat Vice President Kamala Harris in the Nov. 5 election. If he wins, he could seek to pardon himself for any federal crime or have his new Justice Department leadership dismiss any criminal cases pending against him in federal court. State criminal charges are beyond the reach of presidential pardon authority or Justice Department action.
Under U.S. law, civil or criminal cases pursued against federal officials may be moved to federal court if they relate to do their duties in office.
Trump's lawyers Todd Blanche and Emil Bove wrote that prosecutors' "use of official-acts evidence in grand jury proceedings and at trial violated the Constitution and threatens the ability of all future Presidents to fulfill that role."
Trump was convicted by a jury in May of falsifying business records to cover up a payment of $130,000 made by his former lawyer Michael Cohen to adult film actress Stormy Daniels for her silence before the 2016 election about a sexual encounter she has said she had with Trump a decade earlier. The case was brought by the office of Manhattan District Attorney Alvin Bragg, a Democrat.
Trump denies the encounter with Daniels. He has vowed to appeal the verdict after his sentencing, which is scheduled for Nov. 26.
The Supreme Court's immunity ruling, arising from an appeal related to federal criminal charges against Trump over his efforts to overturn his 2020 election loss to Democrat Joe Biden, held that evidence of a former president's official acts cannot be used in criminal cases about otherwise personal conduct.
Trump's lawyers have argued that the Supreme Court's decision meant the case should be dismissed. Trump pleaded not guilty in the Manhattan case and the federal election-related case.
Hellerstein denied Trump's request to move the case to federal court, finding that the trial dealt with "private, unofficial acts, outside the bounds of executive authority."
If the 2nd Circuit rules against Trump, he could ask the Supreme Court — whose 6-3 conservative majority includes three justices he nominated — to hear the matter.
A spokesperson for Bragg's office did not immediately respond to a request for comment. The 2nd Circuit has not given Bragg's office a deadline to respond to Trump's brief.
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