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Now that the Supreme Court will review the D.C. Circuit’s decision that Trump has no immunity from prosecution in the federal election interference case, there are questions about which of the other three criminal cases could be affected.
Through a filing last week, Trump has already moved to dismiss the classified documents case on immunity grounds. Trump also moved to dismiss the RICO case in Fulton County, Georgia, on presidential immunity grounds in early January.
But Manhattan District Attorney Alvin Bragg’s hush money case is different, in part because it arose before Trump’s legal team was thinking about his legal problems holistically.
Specifically, when Trump was first indicted in that case, he moved to remove the matter to Manhattan federal district court (i.e., the Southern District of New York), arguing that as a federal officer, he was entitled to a federal forum. Trump also argued that his defense would turn on one or more questions of federal, rather than state, law, as required by the removal statute and precedent. In his brief, Trump said he intended to defend himself by arguing: 1) that any prosecution of him premised on an underlying violation of federal campaign finance law was preempted by the pertinent federal statute; and 2) more significantly, that he was immune from prosecution as a matter of federal constitutional law.
In a scathing and thorough opinion last fall, Judge Alvin Hellerstein rejected Trump’s removal motion, finding that not only was Trump a former federal officer ineligible for removal, but that even if he were eligible, the federal legal defenses he intended to raise were not even colorable.
Specifically, Hellerstein rejected Trump’s argument that he was immune from Bragg’s prosecution because “his conduct ‘was taken solely because he was President of the United States’ and, ‘as such, his decision to retain Michael Cohen to act as his personal lawyer arose out of his duties as President.’” Hellerstein explained:
Trump’s argument is conclusory. No evidence was presented to support it, and Trump has not explained how hiring and making payments to a personal attorney to handle personal affairs carries out a constitutional duty. 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 is not immune from the People’s prosecution in New York Supreme Court. His argument of immunity is not a colorable defense.
Trump initially appealed Hellerstein’s decision, but he withdrew that appeal in mid-November. Why? We don’t know for sure — but one likely reason is that his removal argument undermines, if not contradicts, one of his main defenses in the various ballot qualification battles. Trump could not continue to argue he was a federal officer for purposes of removal without appearing to concede as much in, say, the Colorado case, in which Trump argued that the president is not an officer of the United States. Perhaps not coincidentally, Trump withdrew his removal appeal just two days before the Colorado trial court ruled on Trump’s ballot eligibility following a weeklong trial. And that court found that although Trump had participated in an insurrection, he could not be removed from the ballot under Section 3 of the 14th Amendment because, among other reasons, he was not an “officer of the United States.”
Once he withdrew the appeal of Hellerstein’s decision, Trump arguably waived a presidential immunity defense in the New York case. And his legal team appears to understand that. Notably, although he did move to dismiss the state indictment on several grounds, immunity was not one of them — and in any event, Trump’s motions to dismiss were rejected by Judge Juan Merchan earlier this month.
Trump, of course, is not above legal Hail Mary passes. But the odds of his pressing a presidential immunity defense at this point in the New York case are slim — and the likelihood that Merchan would allow it is even slimmer.