A federal judge has expressed doubts about President Donald Trump’s argument to move an appeal of his hush-money conviction to federal court — after attorneys already had proceedings in two other courts.
Judge Alvin Hellerstein said Trump’s lawyers missed an opportunity by first bringing the U.S. Supreme Court’s decision on presidential immunity to the state court judge who oversees the criminal trial, rather than sending it to a federal judge nearly two months later.
“You made a choice. You wanted to take two bites of the apple,” Hellerstein told Trump’s lawyers on Wednesday.
He also questioned Trump’s lawyers about their argument that the case should be moved to federal court because Trump could claim immunity as a defense. He called the arguments “provocative” and said he would issue a ruling later.
Trump’s lawyers are trying to move an appeal of his hush-money conviction to federal court, where a judge could interpret challenges involving federal preemption and presidential immunity. The expulsions would also create a faster path for appeals to be heard by the U.S. Supreme Court.
In 2024, Trump was convicted on 34 state charges of falsifying business records by paying hush money to adult film star Stormy Daniels.
Hellerstein said during oral arguments Wednesday that Trump’s lawyers appeared to have made a strategic decision to first take the Supreme Court’s ruling on presidential immunity to Judge Juan Merchant, the state judge overseeing the trial, and then try to move the case to federal court, which did so 58 days after the ruling.
Trump’s attorney, Jeffrey Wall, pushed back on Hellerstein’s comments that he was trying to get another bite at the apple.
Wall said if they bypassed the silent judge, “it would be an absolute disrespect to him.” He said they must act quickly before a state judge, who will be sentencing Trump in 10 days.
Hellerstein said Trump’s lawyers missed the legally allowed 30 days to move the case to federal court and the burden now is on whether there is “good cause” to allow them to try again.
“All you’re doing is saying your justification is that you’re afraid of angering the state court and you want to give the state court a first chance” to rule on the Supreme Court’s decision before the argument is heard in federal court, the judge said.
“You have made a strategic decision. You are considering where a better decision could be made and that shows intent,” the judge said.
“My argument is, this is fatal to you,” Hellerstein said.
Meanwhile, Trump is appealing in state court 34 counts of falsifying business records to influence the 2016 presidential election. The appeal could eventually go to the U.S. Supreme Court, but there are additional layers of review.
Hellerstein had previously resisted Trump’s efforts to move the case to federal court, arguing that Trump’s argument that he had presidential immunity did not apply. Trump then tried again after the Supreme Court ruled on presidential immunity. He argued that the use of evidence, including testimony from Trump’s former White House adviser Hope Hicks and tweets from his time in office, was improperly used and that his conviction should be overturned.
Hellerstein denied the ouster motion at the time, writing: “Private projects with private actors, unrelated to any statutory or constitutional authority or executive function, are considered unofficial conduct.”
Trump appealed, and the 2nd Circuit Court of Appeals in November sent it back to Hellerstein for further analysis considering the Supreme Court’s ruling on presidential immunity.
On Wednesday, Wall, Trump’s lawyer, argued that when the Manhattan district attorney’s office presented evidence they considered official actions — such as Trump’s tweets, trial testimony from his former White House aide Hope Hicks, and testimony from Trump’s conversations with the attorney general — that changed the case and should now move it to federal court.
“The DA holds these keys. He doesn’t have to present this evidence at trial to prove his case. Once he does, it becomes a prosecution related to these official acts,” Wall argued.
“Is that enough to make it a federal case? I think the answer is obviously yes,” Wall said.
The attorney added, “I don’t think you have to get to the bottom of it. This is all for the Second Circuit.”
Wall said judges don’t have to decide the merits of the immunity argument, just that they have what’s called a “colored defense” to move the case to federal court.
Steven Wu, a lawyer with the District Attorney’s Office, argued that a dispute over the evidence was not a defense to criminal charges.
“The defendants appear to believe that the introduction of evidence of official conduct somehow changes the nature of the criminal proceedings. This is not the case. The charges arise from conduct that is entirely unofficial and private,” Wu said.
During Wednesday’s arguments, while the judge expressed doubts about many of Trump’s legal arguments, he acknowledged that there was one technological strategy that appealed to him.
“It was a wonderful idea because I then took the whole issue to the appeals court,” Hellerstein said.
For more CNN news and newsletters, create an account at CNN.com
