Appeals court revives Trump’s effort to fight hush money conviction in light of Supreme Court immunity ruling

By Kara Scannell, John Fritze, CNN

(CNN) — A federal appeals court in New York on Thursday said that President Donald Trump should be allowed to make a case for why federal courts should review his hush money conviction for possible conflicts with the Supreme Court’s landmark immunity decision last year.

A panel of three judges sent the case back to a district court judge to address certain questions raised by the Supreme Court’s decision and determine whether Trump meets the threshold to be heard a second time. The district court judge has already twice denied Trump’s effort to move the hush money case into federal court.

“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,” the judges wrote in Thursday’s opinion.

The decision gives Trump another chance to try to move the state case into federal court, but it does not give Trump what he ultimately asked for – to bypass the district judge and allow the appeal of his conviction to be heard before the federal appeals court judges. Trump is simultaneously appealing his conviction on 34 counts of falsifying business records in New York State court.

Trump’s argument turns in part on evidence prosecutors used against him in the case, including testimony from former White House Communications Director Hope Hicks.

The Supreme Court’s decision granted Trump immunity from criminal prosecution for his official acts and it barred prosecutors from attempting to enter evidence involving official acts, even if they were pursuing alleged crimes involving that president’s private conduct.

Put another way, the underlying question in the case is whether prosecutors crossed the line by including the testimony from Hicks and former executive assistant Madeleine Westerhout – two former White House aides – in a hush money case that was tied to Trump’s personal actions.

A three-judge panel of the New York-based 2nd US Circuit Court of Appeals, all appointed by Democratic presidents, asked probing questions of both sides during arguments in the case in June 11.

The judges wrote that district court Judge Alvin Hellerstein did not address “significant issues” related to whether Trump had “good cause” when Trump sought removal a second time. They sent the case back with guidance, suggesting the judge review evidence related to Trump’s time in the White House, determine whether Trump has a federal defense and whether he asked the court to intervene in a timely matter.

Manhattan District Attorney Alvin Bragg has argued that it’s too late for federal courts to intervene. Trump was already convicted and sentenced, he has said. Prosecutors have also argued that the evidence at issue isn’t the kind the Supreme Court was referring to. Bragg’s office declined to comment on Thursday’s ruling.

Hicks may have been a White House official when she testified, they said, but she was speaking about actions Trump took in a private capacity.

Federal officials facing prosecution in state courts may often move their cases to federal court under a law designed to ensure states don’t attempt to prosecute them for conduct performed “under color” of a US office or agency. A federal government worker, for instance, might seek to have a case moved to federal court if they are sued after getting into a car accident while driving on the job.

Trump’s conviction stems from allegations that he falsely accounted for a payment to his former lawyer, Michael Cohen, who paid adult-film star Stormy Daniels to keep her from speaking out about a past alleged affair with Trump weeks before the 2016 presidential election. (Trump has denied the affair.)

Trump’s lawyers also argued the state’s attempt at “seeking to regulate federal campaign finance issues relating to the 2016 election are void under FECA’s express preemption provision and the Supremacy Clause.”

Judge Hellerstein, nominated to the bench by President Bill Clinton, denied Trump’s request to move the case to federal court. Trump openly complained about the New York trial court judge in his case, Juan Merchan, and said he wanted his case heard in an “unbiased federal forum.”

Hellerstein previously ruled that removal was not warranted because the reimbursement of the hush money payment were “private unofficial acts.” After the Supreme Court’s decision on presidential immunity, Trump made a second attempt to move the case into federal court. Judge Hellerstein denied that motion, writing that “nothing” in the Supreme Court’s opinion altered his view.

“Private schemes with private actors, unconnected to any statutory or constitutional authority or function of the executive, are considered unofficial acts,” the judge wrote.

The appeals court said Hellerstein needed to do a further review of the factors.

“President Trump continues to win in his fight against Radical Democrat Lawfare,” a spokesman for Trump’s legal team said in a statement. “The Supreme Court’s historic decision on Immunity, the Federal and New York State Constitutions, and other established legal precedent mandate that the Witch Hunt perpetrated by the Manhattan DA be immediately overturned and dismissed.”

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