Lawyers for former President Donald Trump elevated their request to move his New York criminal case to federal court Monday evening, telling an appeals court that he is immune from prosecution for actions taken while in office.
Citing the July 1 Supreme Court ruling on presidential immunity, Trump’s legal team told the U.S. Appeals Court for the 2nd Circuit that the charges brought by Manhattan District Attorney Alvin Bragg, an elected Democrat, relate to official acts performed during Trump’s presidency, which should be shielded from prosecution.
“President Trump is subject to an unlawful prior restraint,” Trump attorney Todd Blanche wrote in a 99-page filing, citing several problems, including “2019 evidence indicating that [the trial judge] previously criticized President Trump’s use of Twitter, which is a central issue in the Presidential immunity motion.”
This latest request follows a previous attempt in August to move the criminal hush money case to federal court after a New York jury found Trump guilty of 34 felony counts related to falsifying business records in May.
U.S. District Judge Alvin Hellerstein denied Trump’s post-conviction removal effort in September, where the former president had similarly tethered his argument to the Trump v. United States immunity decision.
Trump’s lawyers maintain that the use of evidence related to his official presidential duties during grand jury proceedings and at trial violates constitutional protections for the office of the president.
The charges against Trump include 34 counts of falsifying business records related to concealing a hush money payment to porn star Stormy Daniels during the final stages of his 2016 presidential campaign. Trump pleaded not guilty.
Attorney Todd Blanche, representing Trump, has asserted that some of the evidence presented at trial, such as communications involving White House staff, included official acts, which are immune from prosecution under the Constitution, according to the Supreme Court ruling this summer.
The Supreme Court ruled in July that while former presidents are protected from prosecution for official acts, there remain ambiguities and distinctions over what constitutes “official” versus “unofficial” actions.
Judge Juan Merchan, who presided over the six-week trial, is set to rule on Nov. 12 regarding Trump’s motion to vacate the conviction in light of the immunity decision. Sentencing, which had been postponed until after the presidential election, is now scheduled for Nov. 26.
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The request comes just three weeks before Election Day and as the former president has recently seen the polls tighten between him and his political opponent Vice President Kamala Harris in key swing states. Trump also faces two federal criminal indictments that could be tossed out if he wins reelection, as he could command the Justice Department to stand down from those prosecutions led by special counsel Jack Smith.
A decision by the 2nd Circuit over this request is not expected until after the sentencing.