Donald Trump’s lawyers were comin’ in hot last night at the Second Circuit.
The underlying proceedings arise from a politically motivated investigation by the Manhattan District Attorney’s Office (“DANY”), dubbed the “zombie case” by former Special Assistant District Attorney Mark Pomerantz because DANY refused to abandon efforts to target President Trump until star witness, felon, and serial perjurer Michael Cohen-bolstered by other financially motivated witnesses such as Stormy Daniels-concocted the type of false and implausible story President Trump’s political opponents wanted to hear.
If they have a non-insane argument, Trump’s lawyers Todd Blanche and Emil Bove risk burying it under a steaming pile of unrelated invective in a brief that runs to 79 pages, with four appendices. If they don’t have a non-insane argument, well … this is exactly how they’d proceed, right?
What they want is for the Circuit Court to swoop in and remove the case to federal court, despite the fact that a jury found Trump guilty in May of creating false business records to cover up the hush money payment to Stormy Daniels, and the federal removal statute requires notice of removal within 30 days of arraignment.
Indeed, Trump did try to remove the case to the Southern District of New York in timely fashion back in 2023, only to be unceremoniously booted by Judge Alvin Hellerstein, who found that making false “retainer” payments to a lawyer to reimburse him for money fronted to a porn star prior to election was not part of his official presidential duties. The law does allow a criminal defendant to move for removal at a later date “for good cause shown,” but in a desperate bid to fend off sentencing, Trump simply docketed a second removal notice in August without leave of the court. After the clerk removed the notice, Blanche and Bove restyled their motion as a petition.
They argued that Justice Merchan was biased, that he had improperly allowed the use of impermissible evidence under Trump v. US, and that the conduct at issue was part of his official presidential duties, and thus immune from prosecution. In fact, these arguments are all being considered by state appellate courts in New York, as Judge Hellerstein noted a day later when he summarily dismissed their motion.
But this did not deter Trump’s lawyers, who gamely repeated them last night, while complaining about the trial judge’s “rushed and conclusory summary remand order issued without adversarial briefing or a required hearing.”
Not to put too fine a point on it, but that is BULLSHIT.
Under 28 USC § 1455(b)(2):
A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
Trump was entitled to and got a hearing and full briefing on his original removal petition back in 2023, and he lost. The Supreme Court’s intervening immunity ruling may yet blow up the verdict, since testimony by White House aide Hope Hicks might have been inadmissible; but that’s got nothing to do with the underlying conduct, which Judge Hellerstein already found was purely personal. Trump was not entitled to a second, post-conviction bite at the apple, much less a second round of briefing and a “required hearing,” absent a judicial finding of “good cause.” And two former federal prosecutors bloody well know that.
After Justice Merchan postponed Trump’s sentencing until after the election, the Second Circuit denied his emergency stay motion. That panel was made up of Judge Michael Park, one of the FedSoc babies installed on a party-line vote, Judge Lohier, who was appointed by Obama to fill the seat vacated by Justice Sotomayor, and senior Judge John Walker, who was originally appointed to the Southern District of New York by Ronald Reagan. Perhaps they will be more receptive to his claims that it should snatch the case from state courts because his lawyers take several hundred pages to shout TRUMP V. US CHANGED EVERYTHING.
Or perhaps not.
People of The State of New York v. Trump [District Docket via Court Listener]
People of The State of New York v. Trump [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.