Left: Judge Juan Merchan poses for a picture in his chambers in New York (AP Photo/Seth Wenig). Right: Donald Trump is escorted to a courtroom in April (AP Photo/Mary Altaffer, File).
Attorneys for Donald Trump on Thursday embarked on their second attempt to remove the former president’s “zombie” hush-money case to federal court, this time asking a judge to prevent a September sentencing in New York and set the stage for possible dismissal based on the Manhattan district attorney’s use of “official acts” in evidence, including tweets.
In the removal notice submitted to Senior U.S. District Judge Alvin Hellerstein, Trump attorneys Todd Blanche and Emil Bove made the case that there is “evidence of local hostilities,” whether on the part of Acting New York Supreme Court Justice Juan Merchan or Manhattan DA Alvin Bragg (D), and a need for an “unbiased forum” where he “can seek redress for […] Constitutional violations” and vacate his 34 falsification of business records guilty verdicts.
Bragg “violated the Presidential immunity doctrine in grand jury proceedings, and again at trial, by relying on evidence of President Trump’s official acts during his first term in Office,” the Trump notice said, before citing the immunity ruling in Trump v. United States. “The U.S. Supreme Court recently ruled that these types of violations threaten the structure of the federal government and the ability of future Presidents to carry out their vital duties in the way the Framers intended.”
“DANY’s flawed case is also preempted because their Indictment turned on the improper use of state law to try to retroactively police the 2016 Presidential election through non-unanimous jury findings,” the filing continued. “The Supremacy Clause violations arising from DANY’s overreach are illustrated by the fact that neither federal prosecutors nor the Federal Election Commission proceeded against President Trump based on the allegations that DANY relied upon.”
In recent weeks, Merchan for the third time declined to recuse himself from the case and the defense responded by asking him to move sentencing past the 2024 election, suggesting it could be a way for the judge to “mitigate the asserted conflicts and appearances of impropriety” as the defense challenges the convictions in light of the Supreme Court’s immunity ruling and the state prosecution’s use of “official acts” evidence.
The newly filed removal notice said that evidence included testimony from former White House Communications Director Hope Hicks, Trump’s “official public statements via Twitter in 2018,” and more:
DANY’s official-acts evidence included, for example, testimony from President Trump’s White House Communications Director, who testified about confidential conversations that she had with President Trump in the Oval Office relating to matters of public concern. DANY relied on testimony from another aide to President Trump, whose desk was located immediately next to the Oval Office, regarding her observations of President Trump’s practices as President with respect to sensitive matters and certain national security issues such as phone systems in the White House Situation Room. DANY also offered evidence of President Trump’s official public statements via Twitter in 2018, and official financial disclosures that he made as President pursuant to the requirements of a federal agency housed in the Executive Branch he was running at the time. Lastly, DANY’s star witness and serial perjurer, Michael Cohen, testified regarding President Trump’s official response to federal investigations he oversaw as President—including testimony regarding an alleged conversation with Attorney General Jeff Sessions and separate references to President Trump’s use of the pardon power. DANY relied on similar proof before a grand jury, and that evidence also violated the Presidential immunity doctrine under Trump v. United States.
The defense has said that Merchan criticized “Trump’s use of Twitter” in a 2019 conversation with his daughter Loren Merchan, the president of Authentic Campaigns that Trump lawyers have emphasized has “long-standing” professional ties and a “beneficial working relationship” with Democrats, including the Harris-Walz campaign.
Merchan, having shown this kind of “hostility” towards Trump’s social media use and having issued a since upheld gag order shielding his daughter from criticism, should not be the judge left to decide whether the former president’s convictions should stand and whether sentencing should occur, the defense said.
“During a 2019 podcast, Justice Merchan’s daughter explained that she ‘had a couple conversations with my Dad recently,’ in which Justice Merchan said ‘I hate that politicians use Twitter,’ ‘It’s so unprofessional,’ and ‘That’s not how a politician should behave themselves,”” the filing recounted. “Justice Merchan’s daughter said that she agreed and ‘explained’ to Justice Merchan that ‘when our President tweets anything that he thinks, . . . that’s not what he should be using it for.’”
From this, the defense concluded the judge “apparently ‘hate[s]’ Twitter-using politicians like President Trump,” but is “nevertheless” in a position to decide whether “2018 Tweets were official acts under Trump v. United States.”
“Given the federal institutional interests at stake, that poses an intolerable risk of local bias under the Supremacy Clause,” the defense argued.
When Merchan rejected the third recusal bid, the judge wrote Trump’s arguments that he can’t be fair and impartial are “nothing more than a repetition of stale and unsubstantiated claims” fueled by “innuendo and mischaracterizations.”
The DA’s office reportedly declined to comment on the filing.
Read the removal notice here.
Have a tip we should know? [email protected]
