Second Circuit to Hear Trump Appeal from New York Criminal Case

Today, the United States Court of Appeals for the Second Circuit will hear oral arguments on a threshold issue in the criminal case against President Donald Trump in New York. The case is still pending in the New York court system after his sentencing, but  President Trump wants the case removed to federal court. He is relying on last year’s presidential immunity decision and arguing that Manhattan District Attorney Alvin Bragg tripped a wire by calling former White House aides as witnesses.

Last year, the Supreme Court issued a historic decision in Trump v. United States defining the scope of presidential immunity.

The Court found that there was absolute immunity for actions that fall within their “exclusive sphere of constitutional authority,” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.

The Court has often adopted tiered approaches in balancing the powers of the branches. For example, in his famous concurrence to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson broke down the line of authority between Congress and the White House into three groups where the President is acting with express or implied authority from Congress; where Congress is silent (“the zone of twilight” area); and where the President is acting in defiance of Congress.

Here, the Court separated cases into actions taken in core areas of executive authority, official actions taken outside those core areas, and unofficial actions.  Actions deemed personal or unofficial are not protected under this ruling.

Trump is arguing that he is protected by presidential immunity and that this matter should be heard in federal court. He is citing Bragg’s calling of former White House Communications Director Hope Hicks and former executive assistant Madeleine Westerhout as witnesses to discuss matters that occurring in the White House and during Trump’s first term.

Bragg is arguing that it is too late for such removal. Trump’s prior efforts at removal have failed.

The argument will be heard before Judges Raymond J. Lohier, Susan L. Carney, and Myrna Perez.

This is a difficult case to make at this stage of the case. If Trump loses, the criminal case will continue through the state system and may eventually find its way to the Supreme Court.

I have long been a critic of the case and there are strong grounds to appeal.

For example, Judge Juan Merchan effectively guaranteed a conviction by telling jurors that they did not have to agree with specificity on what had occurred in the case to convict Trump. The only way to get beyond the passage of the statute of limitations on the dead misdemeanor for falsifying business records had been to allege that the bookkeeping violation in question occurred to conceal another crime. Bragg did not bother to state clearly what that crime was, originally alluding to four different crimes.

It was not until the end of the case that Merchan would lay out three possible crimes for the jury. All the way up to the final instructions in the case, legal analysts on CNN and other outlets expressed doubt about what the actual theory of the criminal conduct was in the case.

Despite spending little time on these secondary crimes at trial, Merchan told the jury that they could convict if they believed that invoices and other documents had been falsified to hide federal election violations, other falsification violations or a tax violation.

Those are very different theories of a criminal conspiracy. Under one theory, Trump was hiding an affair with a porn actress with the payment of hush money before the election. Under another theory, he was trying to reduce a tax burden for someone else (that part was left hazy). As a third alternative, he might have falsified the documents to hide the falsification of other documents, a perfectly spellbinding circular theory.

If those sound like they could be three different cases, then you are right. Yet Merchan told the jurors that they did not have to agree on which fact-pattern or conspiracy had occurred. They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved.

Many of us are eager to see the New York system move this case, as well as the equally grotesque case brought by New York Attorney General Letitia James. The cases, however, continue to move forward at a glacial pace in the notoriously slow New York legal system.