President Trump, shown at Manhattan criminal court in New York, May 28, 2024, before he was re-elected, reacts as he walks back into the courtroom after a break during closing arguments in his hush money trial.
Spencer Platt/AP/Pool Getty North America
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Spencer Platt/AP/Pool Getty North America
NEW YORK – An appeal hearing for President Trump’s criminal conviction and sentencing is set to be held in a U.S. court of appeals in Manhattan Wednesday morning. It’s the latest attempt by the president’s legal team to ultimately overturn his conviction in his hush money case, arguing that the case should be moved to federal court.
The president is not expected to appear with his legal team in court for Wednesday’s hearing.
Trump was convicted in New York State Supreme Court last year on all 34 counts of falsifying business records to conceal a payment to adult film star Stormy Daniels in exchange for her silence about an alleged sexual encounter ahead of the 2016 election. While there were several cases, both civil and criminal, against Trump ahead of last year’s election, this was the only criminal case to go to trial. His conviction made Trump the first president to also be a convicted felon.
Trump was sentenced ten days before being sworn in for his second term, receiving an unconditional discharge, meaning he will not face fines, prison or any other penalties, but the conviction will remain on his record. The judge in the case at the time explained that was the only lawful sentence that didn’t encroach on the office of the president.
“I would just like to explain that I was treated very, very unfairly,” Trump said via video at his sentencing in January, arguing that he is innocent despite the jury conviction. He vowed to appeal the conviction.
Legal scholars tell NPR that this particular appeal – which they say is based on a specific and somewhat antiquated law – is unlikely to work.
Jed Shugerman, a professor at Boston University School of Law, says it’s an example of Trump’s legal team using every tool at their disposal to try to overturn the president’s conviction.
“Trump is exhausting every possible argument he can make,” he says.
But he adds that even if this appeal is unsuccessful, it doesn’t mean others will be too.
“The point isn’t that Trump has no substantive arguments,” Shugerman says. “He has actually plenty of strong, substantive arguments. It’s just that they should go through state court.”
What is Trump’s argument in this appeal?
Trump’s lawyers are arguing, essentially, that the appeal for this case should be moved to federal court because prosecutors with the Manhattan District Attorney’s office relied on evidence related to his official acts as president.
In a court filing submitted in early March, Trump’s lawyers argue that the prosecution “rested its case on testimony probing President Trump’s official acts during his first term.”
“Trial thus made eminently clear that President Trump’s appeal of his conviction belongs in federal court,” it said.
The U.S. Department of Justice backed the president, in an amicus brief submitted last month.
But the Manhattan District Attorney’s office argues that the case can’t be moved to a federal court after sentencing.
Trump’s lawyers say that the law around that is unclear.
Their argument is based on the Federal Officer Removal Statute – a law whose origins date back to the early 19th century, to allow federal officials charged with crimes in state courts to move to federal courts if the case involved conduct while in federal office, essentially with the idea that a federal court would be a more neutral space for a trial.
“Basically, it’s a ‘Get Out of State Court Free’ card to play, which is only playable in very narrow situations,” says Shugerman.
The president’s lawyers have used this law in an attempt to get this case moved to federal court twice before. The district court judge who denied Trump’s previous two appeals ruled that the crime at the heart of the case occurred before Trump was a federal official, and therefore the law does not apply.
Trump’s payments to Stormy Daniels occurred in the lead up to the 2016 election, before he was in office.
“The problem is that President Trump’s lawyers are trying to take a statute that’s about whether the underlying conduct was committed within the scope of your federal office, and turn it into does the case in any way, shape or form, touch your federal office,” says Stephen Vladeck, a professor at Georgetown University Law Center. “To do that would really stretch the statute further than it’s ever been stretched before.”
Vladeck says the implications of this legal tactic, if successful, are larger than just this case.
“It’s not just about Trump,” he says. “The more you expand the ability of current and even former federal officers to use the Federal Officer Removal Statute, the more you’re widening the scope of cases that can be removed from state court to federal court in ways that really are, I think, arguably usurping the role of state courts in our system.”
The hearing is expected to take place before a three-judge panel at the Second Circuit, two of whom were appointed by former President Barack Obama and the other by former President Joe Biden.
The president and his legal team also filed a notice of appeal with New York state’s mid-level appeals court in January after his sentencing. Hearings for that appeal have yet to occur.
