Exclusive: Delay in Trump’s Appeal of Hush Money Convictions Could Indicate Strategic Shift in Stormy Daniels Case

A surprising delay in President Trump’s appeal of his 34 hush money convictions in the Stormy Daniels case suggests a shift in strategy in the effort to end the 47th president’s time as a convicted felon under New York state law. The Empire State appellate docket on Tuesday registered a stipulation — meaning both parties agreed to its terms — that expressed the desire to delay for two months the briefing in Mr. Trump’s appeal. Arguments from Manhattan’s district attorney, Alvin Bragg, are now due on March 25. Mr. Trump’s response — his case for why the convictions ought to be tossed — is due May 1.Oral arguments are now scheduled for June instead of April. The stipulation agreement between the two sides does not mention any precedent or case law, but New York’s intermediate appellate court, the Appellate Division, granted it anyway. It appears likely that Messrs. Trump and Bragg, who have been locked in acrimony for years, are converging on a shared appellate strategy — a focus on federal rather than state court. Even as the state appellate process is now pushed to the spring, Mr. Trump’s effort to move his appeal to federal court is kicking into gear. A federal judge, Alvin Hellerstein, 92, will on February 4 preside over a hearing on whether the case belongs in a federal forum. If he rules that it does, the appeal will be weighed not by the Appellate Division — which overturned the $500 million civil fraud judgement inflicted by New York’s attorney general, Letitia James — but by the Second United States Appeals Circuit.That Judge Hellerstein is weighing moving the case to federal court at all is due to the Second Circuit, one of the most prestigious tribunals in the country. The judge, who is also overseeing the government’s prosecution of the deposed president of Venezuela, Nicolás Maduro, has twice refused Mr. Trump’s petitions to move the case. Judge Hellerstein ruled that the payments to the adult film performer Stormy Daniels were “private unofficial acts.”Federal statute allows for the removal of state prosecutions to federal court if the acts in question were committed “under color” of federal law. Both Judge Hellerstein and Judge Juan Merchan, though, ruled that the payments, which totalled some $130,000, did not meet that threshold. The Second Circuit in November ordered Judge Hellerstein to reconsider the issue of where the case belongs. The appellate court reasoned that Judge Hellerstein “did not consider whether certain evidence admitted during the state court trial relates to immunized official acts or, if so, whether evidentiary immunity transformed the state’s case into one that relates to acts under color of the presidency.” Judge Hellerstein ruled that the payments “cannot be considered the performance of a constitutional duty.”Both New York and Mr. Trump could reason that the remand to Judge Hellerstein indicates that the case will now likely be heard by the Second Circuit. Given that possibility, they could reason that preparing the paperwork for a state appeal would be a waste of energy — and for Mr. Trump, legendarily tight-fisted with lawyers, a waste of attorneys’ fees.One legal scholar, Seth Barrett Tillman, reckons that New York’s appellate court “is likely to be a more jealous guardian than the Second Circuit of President Trump’s hush money convictions,” which were brought in by a Manhattan jury. Mr. Barrett Tillman, though, puzzles that the 47th president would be so solicitous of delay, given that “Every day that goes by cements his status as a convicted felon.” The case that now hangs in limbo between state and federal court dates back to an alleged sexual encounter in 2006 at a Lake Tahoe golf course between Ms. Daniels, whose real name is Stephanie Clifford, and Mr. Trump. He issued a series of payments to Ms. Clifford in 2016 and 2017 that she alleged were meant to suppress evidence of the encounter during his run for president. The payments were handled by Mr. Trump’s erstwhile attorney, Michael Cohen.Both federal prosecutors and Mr. Bragg’s predecessor, Cyrus Vance, Jr., declined to bring charges against Mr. Trump based on those payments. Mr. Bragg was willing, and convicted Mr. Trump before a Manhattan jury. While falsification of business records is a misdemeanor, Judge Merchan ruled that if the jury agreed that it was conducted in the service of a second crime — even if they did not agree on the nature of that crime — Mr. Trump could be convicted of a felony.Mr. Trump has contended on appeal that those instructions violated the Supreme Court’s ruling in Ramos v. Louisiana that all criminal convictions, state and federal, require a unanimous jury on all elements. The main thrust of Mr. Trump’s appeal, though, has been that the convictions are voided by the Supreme Court’s ruling in Trump v. United States that official presidential acts are presumptively immune from prosecution. Mr. Barrett Tillman reckons that Mr. Trump’s “reliance on presidential immunity, and not actively contesting Judge Merchan’s jury instructions, is like going to Las Vegas and betting all on red for one spin of the roulette wheel.”

Exclusive: Delay in Trump’s Appeal of Hush Money Convictions Could Indicate Strategic Shift in Stormy Daniels Case

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