‘Grave risk’: Trump urges appeals court to prevent ‘unlawful incarceration’ from happening and says federal judge is ‘ignoring compelling arguments’ on hush-money case

Following a judge’s swift refusal to remove Donald Trump’s hush-money case from New York state court to federal court, lawyers for the former president are simultaneously asking that judge to halt his denial pending appeal and asking the U.S. Court of Appeals for the Second Circuit to, essentially, save his trial judge from himself by ensuring that there will be no “unlawful incarceration” before the 2024 election.

One week ago, the defense filed an removal notice in the hopes of, at least, pushing back the Sept. 18 sentencing date that acting New York Supreme Court Justice Juan Merchan set for Trump’s 34 falsification of business records guilty verdicts, and, at most, laying the groundwork for dismissing the state prosecution in federal court — based on the Supreme Court’s immunity decision in Trump v. United States and Manhattan DA Alvin Bragg’s (D) use of “official acts” evidence, including tweets, at trial.

As Law&Crime has reported, the notice came weeks Merchan for the third time declined to recuse himself from the case, even as Trump lawyers claimed “evidence of local hostilities” — whether the judge’s 2019 criticisms of the former president’s tweets, past political donations to Democratic causes, or his daughter’s political consulting work for Democrats, including the Kamala Harris-Tim Walz campaign — raised reasonable doubts about whether the jurist can be fair and impartial if, as expected on Sept. 16, he issues a ruling on immunity implications for the defendant’s motion to set aside the verdict.

To that end, Trump attorneys asked Senior U.S. District Judge Alvin Hellerstein to remove the case to federal court so an “unbiased forum” could hear their complaints and rule.

But the removal bid got off to a rocky start not long after it began, as Hellerstein last Friday said the notice was “deficient,” since it was not filed with the permission of the court, among other technical issues.

This forced the defense to file its documents all over again on Tuesday, while seeking the leave of the court. Though the filing was correctly submitted the second time around, the judge made quick work of it the same day, rejecting the “local hostilities” line of argument and writing that the Supreme Court’s immunity decision did not change his views from the first removal go-around that failed nearly a year ago.

“Nothing in the Supreme Court’s opinion” in Trump v. United States “affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority,” the judge said, adding that Trump did not show “good cause” for removing the case to federal court.

On the same day as that denial, however, the defense immediately filed a notice of appeal to the Second Circuit.

What followed were two documents. The first was a request that Hellerstein stay his own order and prevent the case from being sent back to Merchan as the appeal plays out.

“The traditional considerations bearing on a stay—likelihood of success on the merits, irreparable harm, and balance of equities—all favor the relief requested herein in order to protect important federal interests, including the institution of the Presidency, the integrity of the 2024 Presidential election, and the Constitutional rights of President Trump and voters around the country,” the filing said, again claiming that the mostly loosened gag order Merchan issued in the case is “unconstitutional and unsupported[.]”

The defense argued further that while the “potential for the unlawful incarceration” of Trump looms large, so does the “rat’s nest” that Merchan should be prevented from wandering into (this same argument also made an appearance in an appellate document).

“Finally, the national public has an interest in free and fair elections, unburdened by the potential for the unlawful incarceration of President Trump by local officials in a single county,” the four-page memo said. “The public would therefore benefit from a stay that could allow Justice Merchan to avoid the ‘rat’s nest of comity and federalism issues’ attendant to the Presidential immunity defense and President Trump’s potential sentencing in the weeks before the election while the Second Circuit determines whether the appropriate forum is in this District.”

The second document, anticipating that Hellerstein may reject the first based on how he “blindly adher[ed]to the court’s earlier Presidential immunity ruling notwithstanding the intervening decision in Trump U. United States,” also asked the Second Circuit to issue a stay pending appeal.

Slamming Hellerstein’s “reductive mischaracterizations” of their position and claiming he is “ignoring compelling arguments regarding ‘good cause'” to remove the case from state court, the defense asserted that the removal denial “cannot withstand even cursory appellate scrutiny.”‘

If the Second Circuit doesn’t grant a stay pending appeal and keeps the hush-money case on track for sentencing, Trump’s lawyers said, there is a “a grave risk of irreparable harm” — namely, incarceration before the election.

“Unlawfully incarcerating President Trump in the final weeks of the Presidential election, while early voting is ongoing, would irreparably harm the First Amendment rights of President Trump and voters located far beyond New York County,” the motion said.

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