The Justice Department defended President Trump in his hush money criminal case on Wednesday, urging that his prosecution be moved out of New York state court so that he can challenge his guilty verdict under presidential immunity.
Trump cannot pardon himself for his 34-count felony conviction on falsifying business records charges, but this is the first time his administration has attempted to officially support the president in his personal criminal defense.
Trump has been attempting to move his criminal prosecution for illegally concealing a 2016 hush money payment to adult film star Stormy Daniels to federal court for months, a process known as removal.
In the new filing, the Justice Department asked the 2nd U.S. Circuit Court of Appeals for permission to file an amicus brief supporting Trump’s argument that he should be able to move courts because prosecutors during the trial mentioned official acts protected by the Supreme Court’s landmark immunity decision.
“He has identified certain categories of the State’s trial evidence, including testimony about his conversations in the Oval Office with the Attorney General and the White House Communications Director, that facially involve official acts,” the Justice Department’s proposed brief says.
Juan Merchan, the New York judge who presided over the trial, rejected Trump’s argument and sentenced him to no punishment just before his inauguration.
Trump is appealing in state court, but he maintains that he has the right to pursue his immunity claims in federal court. Following the rejection of Trump’s argument by a federal district court, the 2nd Circuit will hear oral arguments in June.
Any briefs supporting Trump in the Second Circuit were due before the November election, but then-President Biden’s Justice Department did not intervene. The new administration is now requesting permission to file the past-due document.
“The current administration has now had a chance to review the case, and the Acting Solicitor General has decided that the United States should intervene as an amicus in this appeal. “Allowing the federal government to file an amicus brief is especially appropriate,” Justice Department attorney Maxwell Baldi wrote in the filing.
Steven Wu, the appeals chief for the Manhattan district attorney’s office, which is prosecuting the case, stated that the office will not grant the administration’s request.
However, Wu acknowledged that the government had “many prior opportunities” to participate and that the report “identifies no meaningful change in the federal government’s ‘institutional interests’ (id.) aside from the fact that defendant is now the head of the Executive Branch that is seeking to support his position in this private criminal matter.”
Since taking office, Trump has appointed his personal criminal defense lawyers to senior Justice Department positions. Todd Blanche, Trump’s lead attorney in the hush money trial, is now deputy attorney general, and Emil Bove, another member of the trial team, is now the department’s third-highest-ranking official.
Both attorneys formally withdrew from representing Trump in the case earlier this month, and neither was named in the Justice Department’s brief.
