Left: Manhattan DA Alvin Bragg (Lev Radin/Sipa via AP Images). Right: Former President Donald Trump outside of court (AP Photo/Mary Altaffer).
Donald Trump’s lawyers urged the Second Circuit one more time to issue an administrative stay and “freeze legal proceedings” as they attempt to make the case for taking the hush-money prosecution out of acting New York Supreme Court Justice Juan Merchan’s hands and putting it in federal court, so they can raise lingering presidential “immunity and preemption defenses” there.
The 12-page reply on Thursday took aim at Manhattan DA Alvin Bragg (D) and his office’s response from earlier in the day, claiming that prosecutors once again displayed their “local hostilities” toward Trump by dismissing out of hand the defense’s so far unsuccessful removal bid.
As Law&Crime has reported on the flurry of motions, Trump’s lawyers last week initially filed a removal notice in the hopes of shutting down a Sept. 18 sentencing date, vacating Trump’s 34 falsification of business records guilty verdicts, and potentially setting the stage for dismissing the state prosecution in federal court, based on the Supreme Court’s immunity ruling in Trump v. United States and the prosecution’s use of “official acts” evidence, including tweets, at trial.
The removal notice came a couple of weeks after acting Merchan for the third time declined to recuse himself from the case. The defense argued that “asserted conflicts and appearances of impropriety,” including the judge’s criticism of “Trump’s use of Twitter” in a 2019 conversation with his daughter, a political consultant for the Kamala Harris-Tim Walz campaign and other Democrats, made it inappropriate for Merchan to decide on Sept. 16, two days ahead of sentencing, whether “2018 Tweets were official acts under Trump v. United States.”
The “evidence of local hostilities” created a need for an “unbiased forum” in federal court to analyze these weighty issues, not a state judge who has donated to Democrats, the defense argued.
But the removal bid got off to a rocky start not long after it began, as Senior U.S. District Judge Alvin Hellerstein last Friday said the notice was “deficient,” since it was not filed with the leave of the court, among other technical issues.
This forced the defense to file its documents all over again on Tuesday, while seeking the leave of the court. Though the filing was correctly submitted the second time around, the judge made quick work of it the same day.
“This Court does not have jurisdiction to hear Mr. Trump’s arguments concerning the propriety of the New York trial,” Hellerstein said.
“Nothing in the Supreme Court’s opinion” in Trump v. United States “affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority,” the judge continued, adding that Trump did not show “good cause” for removing the case to federal court.
Trump’s appeal to the Second Circuit followed, asking the federal appellate court to make sure there will be no “unlawful incarceration” before the 2024 election by issuing a stay and hearing his case.
“The public would therefore benefit from a stay that could allow Justice Merchan to avoid the ‘rat’s nest of comity and federalism issues’ attendant to the Presidential immunity defense and President Trump’s potential sentencing in the weeks before the election while the Second Circuit determines whether the appropriate forum is in this District,” the filing said, ripping Hellerstein’s “reductive mischaracterizations” of their position and claiming he is “ignoring compelling arguments regarding ‘good cause”” to remove the case from state court.
Prosecutors answered on Thursday that Trump actually has little to appeal, since Hellerstein merely denied the defense “leave” to file the removal notice at issue.
“But the district court did not enter a remand order here because defendant never filed a proper notice of removal. Instead, as required by statute, defendant sought leave from the district court under [the relevant statute] to file an untimely second notice of removal. In the order on appeal, the district court denied the motion, holding that ‘leave to remove the case is not granted,” Bragg’s office said. “Thus, defendant is not appealing from and cannot seek any stay regarding a remand order, because the district court never entered one. Rather, the only order on appeal is the district court’s denial of leave to file an untimely second notice of removal.”
Bragg’s office added that the “defendant’s appeal would be meritless” because there is no “good cause” to allow a second removal effort “nearly one-and-a-half years” after the relevant “thirty-day deadline” under federal law.
“This Court should deny any administrative stay and, to the extent that it considers defendant’s arguments at all, address them only after full briefing from the People,” the state said.
The defense has now claimed that Bragg’s dismissiveness is yet more evidence of local bias and yet another point in their favor.
“DANY’s suggestion that the Court may not even ‘consider[]’ President Trump’s arguments ‘at all’ is indicative of the level of local hostilities that have pervaded the New York County proceedings, prejudiced President Trump, and support the Second Removal Notice,” Trump’s lawyers said, accusing Bragg of “gamesmanship.”
The Trump team, calling Hellerstein’s denial “deeply flawed,” emphasized that the stakes are high, and so a stay would be “reasonable.”
“In the absence of a stay, Justice Merchan proceeding to deny the Presidential immunity motion as he has already suggested he plans to do—notwithstanding evidence of his bias that is directly related to the motion,” the defense said, “could render futile President Trump’s efforts to present the Presidential immunity and preemption defenses in a federal forum after a successful appeal and removal.”
Read the reply here.
Colin Kalmbacher contributed to this report.
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