Spiegel Stuff: The Gavel: Trump’s new ammo to toss hush money case

By Ella Lee and Zach Schonfeld | Wednesday, February 4

Trump's new ammo to toss hush money case

President Trump's lawyers are back in Manhattan this morning, vying to finally convince a 92-year-old federal judge to take the reins on tossing Trump's criminal conviction.

Fresh off hearing deposed Venezuelan leader Nicolás Maduro's not guilty plea, U.S. District Judge Alvin Hellerstein will decide if Trump's hush money case belongs before him or in New York state court, where a jury issued Trump's sole conviction.

Hellerstein has shown reluctance. But Trump has new ammo.

He can thank the U.S. Court of Appeals for the 2nd Circuit for that.

In November, it ruled that Hellerstein bypassed important issues when he rejected Trump's arguments previously and needed to reconsider.

It breathed new life into Trump's bid, enabling him once again to try the strategy he hopes will land his conviction in the trash can. It would give Trump a full sweep after defeating his three other criminal prosecutions, and a total of 91 charges.

The jury in the hush money case found Trump guilty of all 34 counts of falsifying business records when he repaid his then-fixer, Michael Cohen, for a $130,000 hush money payment he made to adult film actress Stormy Daniels before the 2016 election to keep her quiet about a years-old alleged affair with Trump. Trump denies any affair.

Officials at the federal level, in this case Trump, can ask to move courts when they're being criminally prosecuted for or related to "any act under color" of their office. The provision is aimed at preventing state interference, ensuring officials have a neutral forum to advance their federal defenses.

Trump raises two. He says the verdict was tainted by jurors seeing evidence protected by the Supreme Court's subsequent presidential immunity ruling and prosecutors' theory of the case was preempted by federal election law.

"This case presents federal questions of enormous importance not just for President Trump himself, but for 'the institution of the Presidency,'" Trump's lawyers wrote to Hellerstein.

Immunity has captured much of the attention, but Trump has an unlikely ally in his preemption fight.

Jed Shugerman, a Boston University law professor who supported Trump's impeachments and his federal criminal prosecutions and is now opposing the legality of some of his second-term actions, filed an amicus brief last week backing Trump's argument in the hush money case.

A longtime critic of the prosecution, Shugerman filed the brief in Trump's New York state court proceedings. The president's lawyers were sure to bring it to Hellerstein's attention in the lead-up to Wednesday's hearing.

"Even if there had been criminal activity in this case, Professor Shugerman firmly believes that this was a case for federal enforcement alone," the brief reads. "It is a dangerous precedent for local prosecutors to disregard the law and overreach into federal politics."

Manhattan District Attorney Alvin Bragg's (D) office will urge Hellerstein to deny Trump's effort. Prosecutors say Trump has no immunity claim and his preemption argument was already fully litigated. Besides, Bragg's office says Trump waited too long to try.

"Time has not improved defendant's arguments," Bragg's office wrote in court filings. "This Court already found no good cause for defendant to remove this case a second time. It should reach the same conclusion again under the criteria recently outlined by the Second Circuit."

It's another big day for Hellerstein, an appointee of former President Clinton who has served on the bench over nearly three decades of high-stakes cases.

Following the Sept. 11 terrorist attacks, Hellerstein oversaw the federal lawsuits filed in New York City against the owners of the World Trade Center, the city, airlines and airport security firms.

More recently, Hellerstein was assigned a civil lawsuit implicating disgraced film producer Harvey Weinstein. The judge rejected an eight-figure proposed settlement between Weinstein and women who accused him of sexual abuse.

And, he's been in Trump's crosshairs before, too.

Weeks after ruling in Weinstein's case, the judge ordered that Trump's fixer-turned-foe, Cohen, be released from prison to home confinement.

But it is Trump's hush money case that Hellerstein has yet to escape.

He's rejected Trump's efforts twice before.

Will his third time be the charm?

Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).

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IN FOCUS

Epstein victims push for DOJ redactions; Minnesota court battles

Epstein victims push DOJ to up redactions

Victims of Jeffrey Epstein rushed to court in the wake of the Justice Department's latest drop of files related to the disgraced financier to warn of the "unfolding emergency" over missing redactions.

Brittany Henderson, a lawyer for the victims, told the court Monday that DOJ's dump of more than 3.5 million documents Friday failed in "thousands of instances" to redact the names and personal identifying information of victims.

Since Epstein's conduct burst back into public conversation, when Attorney General Pam Bondi released "Phase 1" of the files last February, victim protection has been top of mind.

But Henderson said that victims' belief the government would abide by agreed upon redactions was "misplaced."

"There is no conceivable degree of institutional incompetence sufficient to explain the scale, consistency and persistence of the failures that occurred — particularly where the sole task ordered by the Court and repeatedly emphasized by DOJ was simple: redact known victim names before publication," the lawyer said.

Henderson noted that the Justice Department has cited its efforts to redact details about victims as the "sole reason" for its delayed release of the documents.

The Epstein Files Transparency Act, signed into law by Trump in November, mandated that all the files be released by Dec. 19. The documents have since trickled out in batches, weeks after the initial deadline.

It's caused some Democrats to call for Bondi to be held in criminal contempt — especially as former President Bill Clinton and Hillary Clinton, the former first lady, secretary of State and Democratic presidential nominee, have faced contempt threats.

The Clintons on Tuesday finalized an agreement with House Republicans to testify in the chamber's investigation into Epstein with the contempt threat hanging over them. Hillary Clinton is set to testify on Feb. 26, and Bill Clinton will appear on Feb. 27.

The Justice Department responded that prosecutors worked "all hours through the weekend" to address concerns raised by victims. As of Monday, any documents that victims or their lawyers asked to be removed for further redaction had been and the search for other necessary redactions continues, the agency said in court filings.

U.S. District Judge Richard Berman, who oversaw the case against Epstein before the financier was found dead in his cell awaiting trial in 2019, set a hearing for today to parse the issue but said he's "not certain how helpful" he can be.

"I encourage you to continue to resolve open issues in good faith," the judge said.

It indeed resolved. Henderson emailed the judge Tuesday that she trusted the deficiencies would be "corrected expeditiously" after continued conversations with the Justice Department. The judge then canceled the hearing.

It's not the end of the road, however.

Henderson asked Berman to issue guidance to the press and public cautioning against the publication of victim names and remain ready to still intervene if the Justice Department doesn't re-redact the documents.

"We appreciate the Court's willingness to revisit these issues if full and timely compliance is not achieved, and we respectfully reserve the right to promptly reraise any remaining or unresolved victim-protection concerns should further deficiencies persist," Henderson wrote in her email.

An untamed ruling in Minnesota

Judges often remain tempered in their rulings.

But not when it came to U.S. District Judge Fred Biery, who came out swinging over the weekend as he ordered the release of Liam Ramos, the 5-year-old Ecuadorian boy detained by immigration authorities in Minnesota.

At the bottom of Biery's ruling sits the now-famous image of Ramos wearing a Spiderman backpack and blue hat as he was being detained. The judge quoted two Bible verses and closed with a valediction, describing his role as placing "a judicial finger in the constitutional dike." It also included the wrong date: Feb. 31.

And at turns, the judge assailed the Trump administration for what he called its "ignorance" of the Declaration of Independence.

"Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned," Biery wrote.

It even caught the attention of former President Obama, who on social media called the decision a "useful reminder of what our federal courts SHOULD be doing to uphold our constitutional traditions."

Read the order causing the ruckus for yourself here.

Biery is a Clinton appointee who serves in Texas, where Ramos and his father were moved after being detained.

As critics of Trump's immigration surge saw vindication in Biery's ruling, it fueled a wave of condemnation from the legal right.

"Biery effectively wrote an op-ed with a caption on it," George Washington University Law professor Jonathan Turley, an opinion contributor to The Hill, wrote on social media.

Sen. Mike Lee (R-Utah), a Senate Judiciary Committee member, wrote, "This federal judge misspelled 'impeach me—immediately.' House GOP, you know what to do."

Biery is far from the first judge whose been criticized for the style and tenor of their opinion.

In November, U.S. Circuit Judge Jerry Smith raised eyebrows when he torched his colleagues in a ferocious dissent from their order blocking Texas's new Republican-friendly congressional map. Smith is Trump appointee.

Smith's dissent mentioned Democratic megadonors George or Alex Soros' names more than a dozen times, despite neither being a party in the case. The judge also said his colleagues should win the Nobel Prize for Fiction and called them an "unskilled magician."

When the case later reached the Supreme Court, the justices took Smith's position.

"Will the usual suspects who condemned Judge Jerry Smith for his redistricting opinion condemn this one?" Ilan Wurman, a conservative law professor at the University of Minnesota, wrote on social media of Biery's latest ruling.

"It's far worse (and it's not even close): No reasoning, no explanation of what the legal claim is or why it's right or wrong, gratuitous political comments, and dubious and extraneous invocation of the Declaration," he continued.

And over on the west coast, U.S. Circuit Judge Lawrence VanDyke caused a stir last year when the Trump-appointed jurist dissented from a decision upholding California's large-capacity magazine ban via an 18-video firearms demonstration. Watch it here.

Some of judge's colleagues weren't too pleased, including one who called it "wildly improper."

SIDEBAR

5 top docket updates

Judge won't block Minnesota ICE surge: A federal judge rejected Minnesota's bid to immediately end the Trump administration's surge of immigration enforcement to the state. Along with Minneapolis and St. Paul, Minnesota argued that Operation Metro Surge violates states' rights under the 10th Amendment.
Pretti death gets civil rights probe: The Department of Justice's (DOJ) Civil Rights Division will join a variety of federal entities investigating the killing of Minneapolis nurse Alex Pretti, tapping the involvement of a segment of the DOJ that reviews excessive force by police.
Trump sues IRS: Trump sued the Internal Revenue Service (IRS) for at least $10 billion over an IRS contractor who leaked his tax return information to media outlets. The man is in prison, and the president seeks to pay himself damages with taxpayer funds under a federal law that allows suits over intentional IRS data leaks. It pits Trump's personal lawyers against Trump's government.
First Brands founder charged: The Justice Department indicted Patrick James, the founder of auto supplier First Brands, whose bankruptcy last fall set off alarm on Wall Street about the risks of private credit. James and his brother, Edward, face wire fraud, bank fraud and other charges.
DOJ 'weaponization' group shakeup: Trump ally Ed Martin no longer heads the Justice Department's "weaponization" initiative focused on reviewing probes into President Trump and his allies.

In other news

Justice Jackson attends Grammys: Supreme Court Justice Ketanji Brown Jackson attended Sunday's Grammy Awards in Los Angeles and was featured on the television broadcast. Her memoir was nominated for best audiobook, but she lost to the Dalai Lama.
Statue, not statute: The late Justice Antonin Scalia is among the contenders to replace a controversial statue of Christopher Columbus in Chicago. One of Scalia's sons, Christopher Scalia, shared a news story about the switch on X and urged Chicagoans to "vote early and vote often." He later added: "For those saying they shouldn't remove the Columbus statue: you're obviously right."
Justice Cruz? President Trump floated Ted Cruz as a potential nominee to the Supreme Court down the line, calling him a "very tough guy – very brilliant guy."
'You need sugar in a trial war room': JPMorgan is complaining about paying millions in legal costs for a pair of entrepreneurs convicted of defrauding the bank. Among other charges, the pair's lawyers submitted $500 for gummy bears (later found to be a typo for $60) and charged a sheet cake for a lawyer that held a family birthday celebration during the trial, according to the Financial Times. One of the pair's lawyers defended the sweet charges by telling the judge last week, "you need sugar in a trial war room."
Whose ex? Former first lady Jill Biden's ex-husband faces a murder charge in the death of his current wife, officials said Tuesday.

ON THE DOCKET

Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:

Today

Rahmanullah Lakanwal, the Afghan national accused of fatally shooting a National Guard member in Washington, D.C., and injuring another, is set to be arraigned before a federal judge.
A federal judge in New York will hear arguments over Trump's bid to move his hush money criminal case from state to federal court.
Ryan Routh, the man convicted of attempting to assassinate Trump as he golfed in Florida in 2024, is set to be sentenced by a federal judge.

Thursday

The U.S. Court of Appeals for the D.C. Circuit is set to hold oral arguments in religious groups' appeal of a judge's decision not to block the recission of a Department of Homeland Security memo that prohibited ICE raids in places of worship as the case moves forward.
The U.S. Court of Appeals for the 1st Circuit is set to hold oral arguments in the Trump administration's appeal of a judge's decision to block its efforts to freeze funds for the Inflation Reduction Act and Bipartisan Infrastructure Act.

Friday

The D.C. Circuit is set to hold oral arguments in the Justice Department's appeal of a judge's ruling blocking a memo from the Office of Management and Budget freezing federal aid.
A federal judge in Minnesota is set to hold a preliminary injunction and class certification hearing in a lawsuit challenging practices at detention facilities in the state.
A federal judge in California is set to hold a preliminary injunction hearing in a lawsuit challenging the California City Detention Facility's conditions, which the plaintiffs say includes a lack of adequate clothing, food and water, access to counsel and more.

Monday

Former CNN anchor Don Lemon is set to be arraigned before a federal judge in Minnesota on federal civil rights charges related to his coverage of a protest inside a church in the state last month.

Tuesday

Acting ICE Director Todd Lyons and other top immigration officials will testify before the House Committee on Homeland Security in the wake of the fatal shooting of Alex Pretti in Minneapolis.