Trump Hush Money Conviction: How Appeals Court Could Kill Trump's Felony Charges
President Donald Trump's booking photo at the Fulton County Jail on August 24, 2023 in Atlanta, ... More Georgia.
The 2nd Circuit Court of Appeals heard oral arguments Wednesday in Trump's request to have his appeal of his conviction heard in federal court, rather than New York state court, which is where he was convicted last year on 34 counts of falsifying business records.
The three-judge panel, which included judges appointed by Presidents Barack Obama and Joe Biden, suggested they may be amenable to Trump's request, arguing that since the Supreme Court ruled after Trump was found guilty that he can't be criminally charged based on 'official acts' in office, there's a 'strong interest' in letting a federal court decide the 'weighty interests' at play in the case.
Trump was convicted on felony charges stemming from hush money payments to adult film star Stormy Daniels, which were made before the 2016 election, but his attorneys have argued the case should be moved to federal court and thrown out, because some of the evidence used at trial was from his time as president, particularly testimony from people who worked with him at the White House during his first term.
The president is appealing the case despite facing no sentence for his crimes—due to the logistical issues any sentence would pose with his presidency—and wants to move it to federal court so the case will be thrown out.
If the case was in federal court, Trump could ask to have the conviction dismissed because it involved evidence related to his official acts as president—and a court could be likely to grant the request given the Supreme Court's ruling last year, which said Trump's immunity from some criminal charges includes charges that are based on evidence from his official presidential acts.
The case has so far stayed in state court because judges have ruled the case only concerns Trump's actions as a private citizen, rather than as president: New York Judge Juan Merchan, who oversaw the trial, has thrown out Trump's request to move or throw out the charges, as did U.S. District Judge Alan Hellerstein, who ruled the payments at issue in the case 'were private, unofficial acts, outside the bounds of executive authority.'
The three-judge panel expressed some skepticism Wednesday of Trump's efforts to have the case moved after he had already been sentenced, noting that moving a criminal case from state to federal court at such a late stage would be unprecedented. The judges didn't rule out the possibility that doing so would be allowed, however, pushing back on prosecutors' suggestion that it's impossible to move the case at such a late stage and saying there are 'competing interpretations' of the law on that issue. Judges also questioned prosecutors' claims that the evidence concerning Trump's time as president shouldn't be enough to justify moving the case—because the evidence was relatively minor—noting the Supreme Court's language on evidence being included under presidential immunity was 'very broad' and thus could even include such minor testimony. While judges noted the unprecedented nature of criminal charges against a former president means the 'boundaries [of the case] are not clear,' they suggested they could be leaning toward allowing the case to be removed to federal court, asking both parties in the case about what the logistics would look like if they did order removal.
The hush money case is the only criminal case against Trump that actually went to trial, as the president has been overwhelmingly able to get out of the criminal charges against him. The two federal cases brought against the now-president were dropped in the wake of his election, and while Trump's other set of state criminal charges in Georgia remain pending, that case is a long shot to move forward. A state court ruled Fulton County District Attorney Fani Willis, who led the prosecution, should be disqualified over her romantic relationship with prosecutor Nathan Wade. The Georgia Supreme Court still has to weigh in on the dispute, but if it agrees Willis should be kicked off the case, it remains to be seen when Trump could go to trial—and if he ever will. That means if the appeals court does rule Trump's hush money case should move to federal court and the case is subsequently dismissed, it could erase the only criminal conviction against Trump and the president's status as a 'convicted felon.'
It's unclear how long it will take the appeals court to rule on the case. If the court agrees with lower court judges and declines to move the case to federal court, Trump could take the dispute to the Supreme Court and ask justices there to rule on his conviction.
Trump will be backed at the federal appeals court by the Department of Justice—which includes the defense attorneys that previously represented him in a personal capacity at his criminal trial. The president appointed his former legal team to high-ranking roles at the DOJ after he won the election, making the lead attorney at his trial, Todd Blanche, the Deputy Attorney General and also elevating attorney Emil Bove, who is now serving at DOJ and has also been nominated to become a federal judge. With his former lawyers now working for the government, Trump will be represented in a personal capacity Wednesday by new attorneys from the firm Sullivan & Cromwell.
A jury in Manhattan found Trump guilty on 34 felony counts following a weekslong criminal trial in May 2024. Trump was convicted based on his checks to Cohen reimbursing the lawyer for his payment to Daniels, as prosecutors successfully alleged the checks were falsely labeled as being for legal services. The president has strongly denied the charges and conviction against him and pleaded not guilty, decrying the case as a politically motivated 'witch hunt' against him. After the sentencing got postponed for months in the wake of the Supreme Court's ruling giving Trump some immunity from legal charges, followed by Trump's election, Merchan formally sentenced Trump for his crimes in January. Trump was sentenced to an 'unconditional discharge,' meaning the conviction will stand and Trump can be formally called a 'convicted felon,' but he faces no punishments for his crimes. The judge said at the sentencing that the decision was solely because of Trump's election as president, saying an unconditional discharge is the only 'lawful sentence' that would not '[encroach] upon the highest office in the land.'
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