President Donald Trump just got a boost in his ongoing appeal of his New York state hush money conviction, thanks to the Supreme Court’s immunity ruling in his federal election interference case. That boost came Thursday, when a federal appellate panel ordered a federal district judge to reconsider Trump’s bid to move his hush money case from state to federal court, where Trump appears to think he has a more favorable path to reversing his conviction.
The new ruling, from the U.S. Court of Appeals for the 2nd Circuit, doesn’t mean that the president will necessarily succeed in overturning his conviction. But it reinforces that the immunity ruling continues to help him and could ultimately lead to upending the guilty verdict in the only one of his criminal cases that went to trial prior to his 2024 election. (His win led to both of his federal criminal cases going away, due to the Justice Department’s policy against prosecuting sitting presidents.)
The removal issue arose when Trump’s lawyers tried multiple times to move the hush money case from state to federal court, including after he was convicted in May of last year of falsifying business records to cover up a hush money scheme in connection with the 2016 presidential race.
After the Supreme Court decided his unrelated appeal in the immunity case in July of last year, his lawyers pressed for moving the hush money case to federal court on the basis of that decision. Even though the high court ruling dealt with immunity for official acts while in office, it also curbed the use of official-acts evidence to convict former presidents of unofficial conduct.
In rejecting Trump’s attempt to harness the immunity ruling for federal court removal, U.S. District Judge Alvin Hellerstein, a Clinton appointee, reasoned last year that nothing from the immunity ruling changed his view “that the hush money payments were private, unofficial acts, outside the bounds of executive authority.”
The three-judge 2nd Circuit panel of Obama and Biden appointees sent the removal litigation back to Hellerstein for another look. They said the district judge didn’t adequately consider whether the immunity ruling represented a change in precedent such that it would’ve permitted Trump to move the case to federal court. Under federal law, federal officers can get their state cases moved to federal court if they’re “for or relating to any act under color of such office” and the defendant raises a “colorable federal defense.”
The panel stressed that it wasn’t saying that Trump will ultimately succeed in moving his case to federal court, only that the district court needs to consider the issue more fully before ruling on it again. Whatever the judge does could wind up back on appeal.
The panel ruling follows Trump’s recent appeal to New York’s intermediate state appeals court in the same case. Citing the immunity ruling’s provision against using official-acts evidence, his lawyers point to evidence at trial from his first term in office: discussions with White House communications director Hope Hicks, statements on social media, discussion with the attorney general and testimony about White House operations.
Manhattan District Attorney Alvin Bragg’s office has argued that the immunity case “has no bearing on this prosecution,” and that it wouldn’t support vacating the jury verdict “even if its reasoning did apply here.” However this federal court removal litigation gets resolved, the Supreme Court is likely to have the last word either way. The question seems to be a matter of what route it takes to get to Washington: through the normal state appeals process and then to the Supreme Court, or whether Trump can accelerate the process and get the case directly into the federal courts through this removal attempt. When it likely gets to the justices, the president may have a receptive audience. When they declined to halt his January sentencing (to a penalty-less unconditional discharge), it was over dissent from four Republican-appointed justices: Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Part of the rationale in the high court majority’s unsigned order to let his sentencing go forward was that “the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.” 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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