Left: Donald Trump (AP Photo/Rebecca Blackwell). Right: Manhattan District Attorney Alvin Bragg (AP Photo/Frank Franklin II).
The Manhattan District Attorney’s Office responded Monday to Donald Trump’s ongoing quest to have his hush-money case hauled into federal court, telling the U.S. Court of Appeals for the Second Circuit that a requested stay pending appeal is both “legally unavailable” and an “attempt to improperly circumvent” state courts.
Manhattan DA Alvin Bragg (D), in a Monday filing on the eve of the Second Circuit panel’s scheduled handling of Trump’s motion for a stay, in so many words said that the former president doesn’t really have anything to appeal other than Senior U.S. District Judge Alvin Hellerstein’s denial of leave to file a removal notice.
When the post-trial removal notice was first filed, Acting New York Supreme Court Justice Juan Merchan still had a Sept. 18 sentencing date in place, but the landscape has changed since then, ensuring that there will be no Trump sentencing until after the 2024 election. This and other factors featured prominently in the DA’s latest opposition filing.
Recall that the removal notice came a couple of weeks after 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,” the defense said, created a need for an “unbiased forum” in federal court to analyze these weighty issues in light of the Supreme Court’s immunity decision.
Hellerstein responded, however, by alerting the defense to their “deficient” filing, which was submitted without leave of court. When the defense asked for leave to file their removal notice, Hellerstein rejected it for lack of jurisdiction and because, in his view, “nothing” in Trump v. United States “affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority.”
As the defense did not show “good cause” for removing the case to federal court, he denied leave.
The Trump team answered by appealing to the Second Circuit, asking a panel to make sure there will be no “unlawful incarceration” before the 2024 election and to foster the “fair and orderly litigation of the Presidential immunity defense” following his 34 falsification of business records convictions but before sentencing.
Merchan already guaranteed that there will be no sentencing before the election, the DA has now emphasized — and, in any event, Trump does not have much to appeal beyond the denial of leave.
“This Court should deny any stay pending appeal. The stay requested by defendant is not only legally unavailable, but also unnecessary in light of the state criminal court’s adjournment of the sentencing,” Bragg told the Second Circuit, which is set to review Trump’s motion after 10 a.m. on Tuesday. “First, as an initial matter, defendant mischaracterizes the nature of this appeal in a way that leads him to request equitable relief that this Court cannot grant. Defendant’s motion purports to seek a stay of ‘the district court’s September 3, 2024 remand order’ and assumes that such a stay would spare him from ‘litigat[ing] his Presidential immunity defense’ in state court and from being sentenced.”
“But the district court did not enter a remand order here because defendant never filed a proper notice of removal,” Bragg continued. “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. And a ‘stay’ of that order simply would not accomplish what defendant requests here—namely, a stay of the state criminal court’s ruling on his post-trial immunity motion or a stay of his sentencing.”
The DA added that Trump’s claims of “irreparable harm” in absence of a stay rings hollow now that “[t]here is now no chance that defendant will be sentenced, let alone incarcerated, ‘in the final weeks of the Presidential election, while early voting is ongoing,” and now that there’s no chance Merchan will decide whether to set aside the 34 felony convictions until — at the earliest — Nov. 12.
While the defense has maintained that the prosecution’s use of “official acts” evidence, including tweets, at trial should at least lead to a new trial or to a post-verdict dismissal, the prosecution has answered that “even if the Supreme Court’s decision required the exclusion of all of the evidence that defendant cited, there would still be no basis for disturbing the verdict because the other overwhelming evidence of defendant’s guilt meant that any error was harmless.”
Bragg concluded that if Trump wants to challenge his falsification of business records guilty verdicts “on immunity grounds” the appropriate place is the trial court, where Merchan has yet to decide the issue, and the state appellate courts after that.
“This Court should likewise reject defendant’s attempt to improperly circumvent the New York State courts,” the DA told the Second Circuit.
Read the DA’s filing here.
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