Trump Files Hail Mary Motion Demanding Federal Judge Cancel NY Case

On Thursday, Donald Trump bellyflopped into the Southern District of New York demanding a second bite at the federal removal apple. The former president, who was convicted in May of 34 counts of creating a false business record to cover up the hush money payment to Stormy Daniels, would like to remove his case from state court immediately and head off sentencing, which is scheduled for September 18.

In June of 2023, when Trump first sought to remove the case, Judge Alvin Hellerstein ruled that none of the underlying conduct related to his official presidential duties. But now Trump claims that the Supreme Court’s immunity ruling changes the landscape completely and entitles him to post-trial relief.

At first blush, it appears to be going poorly. The filing was automatically rejected on Friday evening because he had no right to file it.

Under 28 USC § 1442, a defendant charged with conduct taken “under color” of office may remove his case to federal court. But § 1455 specifies that removal should take place within 30 days of arraignment, “except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.” Trump failed to seek such permission, and so he got summarily kicked.

“Contrary to the wishes of Radical Liberals, President Trump’s powerful petition to remove the Manhattan DA’s Witch Hunt to federal court has not been ruled on by a judge,” Trump’s spokesweirdo Stephen Cheung told MSNBC’s Lisa Rubin. “In a standard procedural move, today, the clerk’s office asked President Trump’s legal team to file in a specific format and we are working with them to make sure it is properly filed on the electronic system.”

Which is kind of true.

This morning, Trump tried again docketing a two-page memorandum of law in support of his motion for relief, that gestured toward “paragraphs 12 and 116 – 146 of the Second Removal Notice” and demanded that Judge Hellerstein punch his ticket — a punch which would itself have the desired effect of barring the court from sentencing their client, since § 1455 provides that “a judgment of conviction shall not be entered unless the prosecution is first remanded.”

The underlying argument is, shall we say, creative. Last year when he tried to convince the court that he’d been paying Michael Cohen $35,000 per month for actual legal work, Trump specifically disavowed any claim of presidential immunity:

DANY argues that there is a “serious question . . . whether a former President can claim absolute presidential immunity against criminal liability.” This Court need not decide this “serious question” for purposes of this motion because President Trump has not raised it in his removal notice.

Trump’s immunity claims with the trial court were similarly rejected for being untimely raised.

These are what you might call “bad facts.” And so Trump’s lawyers Todd Blanche and Emil Bove simply ignore them and shout that the judge and indeed the entire state of New York is BIASED. In fact, the filing is more notable for what it leaves out rather than what it includes.

There’s no mention of Judge Hellerstein’s conclusion last year that none of the implicated conduct was part of Trump’s official duties. Blanche and Bove nimbly draft around the fact that the dispute involves evidence which is presumptively barred by the SCOTUS immunity ruling — specifically testimony by Trump’s aide Hope Hicks — and not any official act itself. They also omit to mention that they are currently pursuing identical claims in state court, and that they vigorously pressed those claims during the nine weeks since the Supreme Court ruled in Trump v. US. It was only when it became clear that the New York appeals courts would not save them that they came racing back to Hellerstein — a classic case for Younger abstention.

Instead Blanche and Bove advance a bizarre theory about the end of Chevron deference (which they call Raimondo instead of Loper-Bright, for reasons unclear) and the Supreme Court’s ruling in Trump v. Anderson, which barred states from kicking him off the presidential ballot just because he tried to overthrow the government.

They seem to be suggesting that the prosecution based its felony claims on Trump covering up violations of state and local election law, and that in turn violates the Supremacy Clause? Also the FEC is now illegal under Loper Bright? And taken with Trump v. US, that means …

Well, look, no one actually knows what it means. But if Trump can get Judge Hellerstein to take the bait, he can postpone the sentencing and then fight about it after the election.

These three Supreme Court decisions “are as conclusive as the laws of Congress made in pursuance of the Constitution.” Cooper, 73 U.S. at 253. Treating them as such—by authorizing removal and permitting appropriate dismissal ligation in this District—is “essential to the peace of the nation, and to the vigor and efficiency of the government.”

And if the facts and the law are against you, pound the table.

People of The State of New York v. Trump [Docket via Court Listener]

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Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.