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?
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