In Donald Trump’s role as president, he’s busy trying to turn the military into his own personal police force, which seems like it should take up most of one’s attention. But since his personal role still includes “man convicted of 34 felonies in New York State court,” he’s made sure to carve out time to beg a federal appeals court to let him move that case to their more friendly confines. Truly a master of multitasking.
On Wednesday, Trump’s brand-new personal legal team—necessary because Trump gave government jobs to his previous one—argued to the 2nd U.S. Circuit Court of Appeals that because Trump is a special boy, he should get special toys.
Since Trump’s criminal convictions were in state court, he can’t make them go away with a self-pardon or by having his Department of Justice work some magic on his behalf. But if he can get it into federal court, if all else fails, he always has his friends on the Supreme Court.
In fact, Trump’s argument here relies almost entirely on the greatest gift his friends on the Supreme Court ever gave him: presidential immunity. Yes, the argument is that since the Supreme Court ruled on July 1, 2024, that Trump was immune from prosecution for “official” acts, that should be applied backward to Trump’s criminal conviction.
Oh, and a brief reminder that Trump is also still appealing his conviction up through the New York state courts while also trying to get it into federal court. It’s good to take a belt-and-suspenders approach, and apparently, Trump has nothing but time these days.
There’s a big obstacle here that would normally stop this dead in its tracks. The Supreme Court cannot review a state court’s case until it is fully litigated to the highest court in the state and has a final ruling.
Trump’s legal team’s argument to the federal appellate court is basically Let us skip the line, bro. Come on. He’s friends with the owners, and he’s gonna call your boss if you don’t let him.
This legal team also unsubtly telegraphed that their goal was to get this in front of the Supreme Court. It should be there because the scope of Trump’s federal constitutional immunity should be decided “by this court and the Supreme Court, not by New York State courts.”
Even if Trump succeeds in getting this to federal court, his conviction occurred in state court. Theoretically, that would mean he can’t pardon himself, but hey, who knows what the Supreme Court would do for Trump on this one. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh seem to appear inclined to give it a whirl.
In something that flew under the radar at the time—because who can keep up?—former federal prosecutor Andrew Weissmann reported Thursday that the Department of Justice filed a brief on Trump’s behalf. There, they argue that the federal officer removal statute allows this to be sent to federal court. And since there was evidence introduced in the state case that relied on things that occurred while Trump was president, it is improper since his presidential immunity should work backward and make that go away.
Weissmann also noted another fun fact: There’s no evidence that Trump’s two former defense attorneys, Emil Bove and Todd Blanche, recused themselves from the DOJ filing. So Trump’s previous personal criminal defense legal team possibly got to shape the argument made on behalf of the federal government, on Trump’s behalf. This is even scuzzier then when former Interim U.S. Attorney Ed Martin, in his prosecutor role, dismissed a case against a Jan. 6 rioter in which he was still the defense attorney of record.
As with nearly everything right now, it seems depressingly likely that Trump’s fate will somehow end up back at the Supreme Court if that court wants it there bad enough. That’s not meant as an implication that Trump could back-channel the court to take it, though his effusive “Thank you again, I won’t forget it” moment with Roberts sure looked a lot like Trump was thanking the chief justice for doing him a solid. Trump’s story is that he was thanking him for how great a job Roberts did at swearing him into office in January.
And Roberts owns this. This is the obvious and predictable fallout from the immunity decision. Roberts made Trump a king, and kings can’t be touched.