An attorney for President Donald Trump argued to the U.S. Court of Appeals for the 2nd Circuit Wednesday that the appeal for his felony business records conviction in New York should be moved to the federal court system, pointing to the Supreme Court's ruling on presidential immunity reached shortly after the jury's ruling in the case.
"The federal officer is entitled to a federal forum, not to have those arguments heard in state court," attorney Jeffrey Wall told the three-judge panel, two of whom are appointees of former President Barack Obama and the other an appointee of former President Joe Biden, reports ABC News.
"And if that's true for a normal federal officer in a normal criminal prosecution, it certainly ought to be true for the president of the United States and for what we can all recognize is an anomalous one of its kind prosecution."
Trump's attorneys are arguing that the Supreme Court's decision on presidential immunity, combined with the method of prosecution in the case, warrants moving the appeal to the federal courts, and the three-judge panel will determine if the case should be advanced, reports The Hill on Wednesday.
The judges did not immediately rule in the case but said they will take the arguments under advisement. If Trump's request is granted, his conviction will remain and his appeal will take place in a federal court rather than one in New York. Either way, he can ask the Supreme Court to intervene.
Steven Wu, an attorney for the Manhattan District Attorney's office, said that it's too late to move the case to federal proceedings, as New York Judge Juan Merchan, just before Trump's inauguration, sentenced him to an unconditional discharge, saying that was the "only lawful sentence" that would prevent "encroaching on the highest office in the land."
Appeals Court Judge Myrna Pérez, a Biden appointee, commented that "it seems to me that we got a very big case that created a whole new world of presidential immunity and that the boundaries are not clear at this point," reports The Hill.
His lawyers admit he's not immune to prosecution for the felony counts, but argue that prosecutors in the case used immunized evidence, including Trump's posts on social media and testimony from a White House aide.
Trump attorney Jeffrey Wall noted that "federal officers get prosecuted all the time for things that have nothing to do with their job, but if a state or local attorney says, 'We're going to put into evidence things that have to do with the way you do your job,' then they've triggered a uniquely federal interest."
The appeals panel isn't expected to resolve how immunity applies in the case, with Trump's side only needing to show that it is a plausible defense.
But after Wednesday's oral arguments, it was not clear if the panel is convinced he met that standard.
"Was there another case in which an evidentiary immunity related to a federal, or claimed as a federal defense, has served as a basis for removal?" Judge Susan Carney, an Obama appointee, asked, with Wall acknowledging that the situation arises "very rarely."
Judge Raymond Lohier, another Obama appointee, asked Wu if there would be no good cause because of the delay, even if the panel agreed with Trump that the immunity decision would allow the case to be removed, and he agreed.
Trump's latest bid is being backed by his Justice Department, after it filed a friend-of-the-court brief after his return to the presidency.
Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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