Will there be another hush money trial against Donald Trump after he leaves office?
The possibility is raised by the president’s pending appeal, which was the subject of a hearing Wednesday. But the issue at the U.S. Court of Appeals for the 2nd Circuit wasn’t whether Trump’s state conviction will be overturned, but where his attempt to overturn it will proceed: in state court or federal court, with the president pushing for the federal route.
The hearing left it unclear what the three-judge panel will decide. But regardless of where the appeal moves forward, the Supreme Court can have the last word. And that last word could be that Trump deserves a new trial, based on its immunity ruling last summer.
Regardless of where the appeal moves forward, the Supreme Court can have the last word.
Before the immunity ruling came down last year, a Manhattan jury found Trump guilty of falsifying business records, for covering up a 2016 election conspiracy involving hush money paid to adult film star Stormy Daniels. Trump’s former fixer Michael Cohen paid her to stay quiet during the 2016 presidential campaign about her claim that she had sex with Trump, which he denied. He won the election.
The Supreme Court declined to halt Trump’s sentencing before he retook the White House after winning the 2024 election. Splitting 5-4, the justices said Trump’s argument that evidence introduced at the trial violated the immunity ruling can be addressed in his appeal. The majority also cited the fact that he was going to receive an “unconditional discharge,” a penalty-free sentence as a courtesy to the then-incoming president, which he received before taking office again.
Now back in office, Trump is pressing to undo the historic conviction. He’s represented by new private lawyers because he named his lawyers who lost the hush money trial, Todd Blanche and Emil Bove, to top posts in the Justice Department (which is backing Trump’s removal bid).
At Wednesday’s hearing, his lawyer Jeff Wall, who was a top DOJ lawyer during Trump’s first term and is now in private practice, sought to persuade the panel that the case should move to federal court, while a prosecutor from Manhattan DA Alvin Bragg’s office said it should stay in state court. More specifically, Trump’s lawyers have argued that he’s “entitled to a federal forum to seek relief based on federal constitutional defenses rooted in structural protections for the institution of the Presidency and the Supremacy Clause,” referring to the constitutional provision placing federal law over state law. Bragg has argued, among other things, that the removal issue is moot now that Trump has been sentenced and that the case should stay the normal course through the state appellate process. But whether or not Trump wins or loses his removal bid — we don’t know when the panel will decide — the justices can take appeals from state or federal courts. If the appeal reaches the justices again, we know from Trump’s failure to halt his sentencing that the four dissenting justices (all Republican appointees) were ready to provide him that extraordinary relief. Chief Justice John Roberts and Justice Amy Coney Barrett were in the majority rejecting Trump’s motion in January, but at least Roberts, who authored the immunity ruling that Barrett didn’t fully join, could form a majority to side with Trump on the merits of his appeal. Whatever the circuit panel decides on removal, it could be a while before the Supreme Court ultimately decides whether Trump’s state conviction stands. But whenever that happens, the justices could say that a new trial is warranted; that, in turn, would raise the question of whether the president would have another hush money trial waiting for him when he leaves office. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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