Trump's attorney asks judges to move appeal of NY hush money conviction to federal court
President Donald Trump's challenge to his "one of a kind" felony hush money conviction in New York should be removed from state appellate courts and heard in federal court, an attorney for the president argued Wednesday.
Just over a year after Trump became the first former president to be found guilty of a felony, the U.S. Court of Appeals for the 2nd Circuit heard arguments Wednesday on Trump's efforts to move his appeal of the verdict from state court to federal court.
"The federal officer is entitled to a federal forum, not to have those arguments heard in state court," attorney Jeffrey Wall told the three-judge panel. "And if that's true for a normal federal officer in a normal criminal prosecution, it certainly ought to be true for the president of the United States and for what we can all recognize is an anomalous one of its kind prosecution."
Trump was convicted last year on 34 felony counts after Manhattan prosecutors alleged that he engaged in a "scheme" to boost his chances during the 2016 presidential election through a series of hush money payments to adult film actress Stormy Daniels, and then falsified New York business records to cover up that alleged criminal conduct.
New York Judge Juan Merchan, on the eve of Trump's inauguration, sentenced him to an unconditional discharge -- the lightest possible punishment allowed under New York state law -- saying it was the "only lawful sentence" to prevent "encroaching upon the highest office in the land."
At Wednesday's hearing, an attorney for the Manhattan district attorney's office, Steven Wu, argued that it's now too late to move the case.
"After sentencing, removal is no longer available," Wu said during oral arguments.
Wu also argued the purpose of removal is to decide where to hold the trial.
"It is not to divert a state criminal proceeding into a federal court for direct appellate review," Wu said.
Wall, who served as an acting solicitor general in Trump's first administration, argued that the time limit to ask for removal to federal court does not apply if Trump can show good cause.
"Why shouldn't we be looking for some more specific signs that Congress actually intended this?" Judge Susan Carney asked.
"It's the first-ever prosecution by a district attorney of a president," Wall responded. "As long as you have colorable federal defenses, and it has something to do with your job, you get to come into federal court notwithstanding the state's interest."
Trump's lawyers have argued that the conduct at issue during his criminal trial included "official acts" undertaken while he was president, and that the Supreme Court's landmark ruling last year granting the president immunity for official acts -- which was decided after Trump was convicted in May -- would have prevented prosecutors from securing their conviction.
"There was evidence that came in at trial that triggered federal immunity," Wall told the appellate panel.
Wu countered that the evidence offered involved discussion about a crime that related to Trump's actions before he became president.
"It's a highly unusual case, would you agree with that?" Judge Raymond Lohier asked.
"This defendant is a very unusual defendant," Wu conceded -- but he argued that should not automatically usurp the state's interest in enforcing its laws.
The judges did not immediately rule, but said they would take the arguments under advisement.
If the appeals court grants Trump's request, his conviction would still remain. The only change is that his appeal will play out in a federal, rather than state, courtroom. In either scenario, Trump could ultimately ask the U.S. Supreme Court to intervene.
Although Trump has in the past asserted that, as president, he would have the right to pardon himself for federal offenses, Pace University Law School professor Bennett Gershman told ABC News that would not apply in this case.
"It's still a state crime -- you're now just talking about where the case is litigated," Gershman said. "I'm not even sure that pardoning yourself is even allowed, but that's an open question that's never been addressed."
