(Photo by SAUL LOEB/AFP via Getty Images)
On June 15, 2023, Donald Trump’s lawyers waived the claim of presidential immunity in their attempt to get his New York criminal case removed to federal court:
DANY argues that there is a “serious question . . . whether a former President can claim absolute presidential immunity against criminal liability.” This Court need not decide this “serious question” for purposes of this motion because President Trump has not raised it in his removal notice.
What yesterday’s second motion for renewal presupposes is … maybe he didn’t?
In May, the former president was convicted by a jury of 34 counts of creating a false business record to cover up another crime. He’s scheduled to be sentenced on September 18, and, judging by his increasingly desperate efforts to forestall the hearing, seems to think that it will be disastrous for his presidential campaign.
Trump has moved the trial court to vacate the verdict in light of the US Supreme Court’s immunity ruling, since his conviction was secured based in part on testimony of White House aides Hope Hicks and Madeline Westerhout, in contravention of the newly invented rule that official acts cannot be used as evidence, even when the crime charged is unrelated to a president’s official duties. He also requested to delay his sentencing until after the election, urging the court to consider the political calendar, even as he decries the prosecution as a purely political exercise.
New York Supreme Court Justice Juan Merchan promises to rule on the motion by September 16. Nevertheless, Trump’s lawyers have barged into the Southern District of New York demanding that US District Judge Alvin Hellerstein snatch the case away from Justice Merchan before he can finalize the judgment.
This would appear to be a classic case of Younger abstention, since the identical issue is currently under consideration in state court. But Trump’s lawyers Todd Blanche and Emil Bove have an answer for that and it is NO MORE CHEVRON DEFERENCE:
In Trump v. Anderson, the Supreme Court warned that states’ “power over governance . . . does not extend to federal . . . candidates.” 601 U.S. 100, 111 (2024) (emphasis in original). In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron decision, which required deference to agency interpretations, and implored courts to rely on their core interpretive competencies when interpreting statutes. 144 S. Ct. 2244, 2254, 2273 (2024). Anderson and Raimondo abrogated prior decisions that deferred to the FEC’s restrictive interpretation of the preemption clause in the Federal Election Campaign Act (“FECA”), which applies broadly to “any provision of State law with respect to election to Federal office” and therefore voids the New York laws that DANY applied to the 2016 Presidential election to try to manufacture nonexistent crimes. 52 U.S.C. § 30143.
At the risk of engaging with absolute bad faith horseshit like it’s real law, we’d note that even this SCOTUS wasn’t willing to detonate four decades of precedent in its zeal to blow up the administrative state. As Chief Justice Roberts wrote in Loper Bright, “[W]e do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” (The scare quotes around “interpretive methodology” are implied.)
Judge Hellerstein has been here with Trump before. In July of 2023, he tossed Trump’s first attempt to remove his New York criminal case to federal court under 28 U.S.C. § 1442. The court rejected Trump’s factual claim that Michael Cohen had been doing IRL legal work to earn his $35,000 “retainer” payments, as well as the legal argument that this work involved cleaning up Trump’s business so he could do president stuff, and was thus undertaken “under color of office.”
“Trump has not explained how hiring and making payments to a personal attorney to handle personal affairs carries out a constitutional duty,” Judge Hellerstein wrote. “Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty.”
Trump’s non-Chevron arguments for getting a second bite at the apple rest on the assumption that Justice Merchan’s failure to recuse entitles Trump to avail himself of “an unbiased federal forum to litigate at least two dispositive federal defenses: Presidential immunity and FECA preemption.” His lawyers scoff at Justice Merchan’s rejection of their immunity claim as untimely, coming as it did on the eve of trial, long after the motions deadline had passed, and they make no explanation for waiting 60 days after SCOTUS dropped its immunity ruling demand post-trial federal removal. Nor did they seek leave to file at such a late date , as would appear to be required under 28 USC 1455(b)(1) (h/t to MSNBC’s Lisa Rubin). But they said “good cause” about fifty times, so perhaps the court will overlook it.
“The First Removal Notice included a defense sounding in Presidential immunity but could not have anticipated the subsequent federal developments culminating in Trump v. United States,” they write, while simultaneously excoriating the prosecutors for running “roughshod over the Supremacy Clause—as related to Presidential immunity and preemption—in their desperate efforts to obtain an unsupported conviction.”
It’s the usual grievance-laden rant, replete with conclusory allegations and ad hoc attacks on the trial judge — par for the course from a defendant who tried to ward off a civil fraud suit by first suing New York Attorney General Letitia James in the Northern District of New York and then in Palm Beach County Civil Court. It didn’t work then, and it won’t work now — at least not with Judge Hellerstein. But six Supreme Court justices were willing to invent a doctrine of absolute presidential immunity to save his orange keister before so … who even knows.
People of The State of New York v. Trump [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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