For years, Trump has argued that the criminal hush money case brought by Manhattan D.A. Alvin Bragg in New York state court should have been transferred to federal court due to his claims of presidential privilege and immunity. In May 2024, Trump was convicted of 34 felony counts for falsifying business records, a case before Judge Juan Merchan that I strongly criticized as legally flawed and improperly tried.
The Supreme Court handed down its ruling in Trump v. United States in July 2024, recognizing core presidential privileges and immunities. The ruling led to the dismissal of the Special Counsel’s prosecutions against Trump. After the ruling, the Trump team renewed its demand for removal, but Hellerstein repeatedly denied that request.
The panel held that the Supreme Court opinion could constitute new grounds for removal. It particularly made certain evidence more problematic after Bragg unwisely used (and Merchan unwisely admitted) testimony from White House meetings. The panel noted three of those instances raised by the Trump team:
“First is the “testimony that President Trump allegedly ‘told’ Cohen that [an] FEC inquiry would be ‘taken care of’ by then-Attorney General Jeff Sessions.” Appellant’s Br. 44. Second is the “testimony from [Hope] Hicks concerning private conversations with President Trump regarding matters of public concern relating to Cohen and his activities, which occurred in the Oval Office while Hicks served as White House Communications Director.” Appellant’s Br. 40–41. And third is the ‘evidence of . . . official statements by President Trump in 2018, via Twitter, regarding matters of public concern.’”
Yesterday, the Second Circuit ruled that the district court failed to consider “important issues relevant” to the merits of the motion:
The District Court denied leave, concluding, among other things, that “good cause” had not been shown for the delay in seeking removal a second time. We cannot be confident that in doing so, the District Court adequately considered issues relevant to the good cause inquiry so as to enable meaningful appellate review. Those issues include but are not limited to the impact of Trump v. United States on the removability of the underlying state prosecution. For example, the District Court did not consider whether certain evidence admitted during the state court trial relates to immunized official acts or, if so, whether evidentiary immunity transformed the State’s case into one that relates to acts under color of the Presidency. Nor did the District Court consider whether any notice of removal of a criminal prosecution under § 1455(b)(1) must be filed before trial even if new grounds for removal arise during or after trial. We therefore VACATE the District Court’s order denying Trump’s motion for leave to file a second notice of removal and REMAND for reconsideration of the motion consistent with this opinion.
The appellate panel was composed of Judges Susan L. Carney (an Obama appointee), Raymond J. Lohier Jr. (an Obama appointee), and Myrna Pérez (a Biden appointee).
The panel added:
“We leave it to the able and experienced district judge to decide whether to solicit further briefing from the parties or hold a hearing to help it resolve these issues. We express no view and ‘neither rule nor imply’ that the district court should resolve Trump’s motion for leave to file a second removal notice in any particular way.”
I am particularly pleased to see that two Obama appointees and a Biden appointee rendered this decision. In sharp contrast to the highly biased role some state judges have played over the years, the ruling reaffirms the independence and integrity of the courts. The usual attacks on the court will be muted in light of its composition. It cannot be said that these were just robotic or reactionary jurists.
This was manifestly the correct decision. Hellerstein could still deny the motion a third time after iron-plating his decision. However, the ruling indicates that the panel views this evidence to be sufficiently weighty to justify a second look and more detailed findings from the district court.
Here is the opinion: Trump v. People of the New York State