"Hail Mary": Trump's latest attempt to delay his hush money sentence "will likely fail," experts say

Donald Trump’s lawyers don’t necessarily believe, deep down in their hearts, that his New York felony conviction for fraudulently covering up hush payments to an adult film star is really a matter of official, presidential business — one that demands the federal courts intervene to uphold “the balanced power structure of our Republic.” But what they know is that making the argument could at least delay the former president’s sentencing in the case, currently scheduled for Sept. 18.

In a 64-page document filed with a U.S. district court Thursday evening, attorneys Todd Blanche and Emil Bove argue, not for the first time, that Judge Alvin K. Hellerstein should take over the case and bring a halt to the state proceedings, which if allowed to continue will “cause direct and irreparable harm to President Trump,” who they describe as “the leading candidate in the 2024 presidential election” (Vice President Kamala Harris presently enjoys a 3.4% lead in the national race, according to 538’s polling average).

As The New York Times noted, Hellerstein rejected a similar argument from Trump’s lawyers last year, made after Trump was indicted. “Hush money paid to an adult film star is not related to a president’s official acts,” he ruled. Now, though, Trump is armed with a ruling from the Supreme Court’s right-wing majority asserting that the former president enjoys presumptive immunity for “official acts”; his lawyers argue that means his 34 felony convictions should be thrown out because prosecutors presented evidence from meetings that took place just after Trump entered the White House.

“This is a Hail Mary by Trump’s team that will likely fail,” Renato Mariotti, a former federal prosecutor, said of the latest filing on social media. “Trump is just trying to push off the criminal sentencing.”

Again, the short-term aim with this filing is not to persuade, although that would certainly be welcome, but to postpone. Indeed, Blanche and Bove close their request for the court to take over the case by also asking it to confirm that New York Judge Juan Merchan “may not sentence President Trump during litigation over this removal [to federal court].”

Trump’s legal team is also asking Judge Merchan to delay the former president’s sentencing, which was originally scheduled for July, “until after the election” (Merchan will also rule on whether to set the verdict aside, in light of the immunity ruling, on Sept. 16). If Trump wins, the argument can then be that no state has the authority to imprison a sitting president.

Lisa Rubin, a legal correspondent with MSNBC, noted that Trump’s latest filing “reads like a bid to prevent any sentencing hearing from going forward.” That assessment is based not as much on the content of the filing as the timing: just over two weeks before the sentencing hearing, but nearly two months after the Supreme Court immunity ruling that it cites.

According to Rubin, the filing could well be rejected without so much as a hearing because of a glaring omission within: it asks the court to suspend Trump’s sentencing while the argument is litigated, but fails to note the legal requirement for that to happen — that the Republican candidate’s lawyers must have first requested and obtained an order from a federal court granting them “permission to file [this] late notice.”

“My guess is that Hellerstein could reject [this] removal notice on that basis alone,” Rubin wrote.

As for the substance: “even if it was timely,” argued Joyce Vance, a former U.S. attorney who teaches law at the University of Alabama, it’s absurd to believe “a debt Trump incurred while campaigning becomes presidential business if he discussed it or tweeted about it once in the {White House].” That, she said, is “not how it works.”

Prior to July 2024, however, most legal experts also thought it unlikely that a president would, in the eyes of the Supreme Court, effectively stand above the law and be immune from criminal prosecution for nearly anything tangentially related to their “official” duties; that notion, after all, is nowhere to be found in a U.S. Constitution drafted by people who, for all their faults, were opposed to the idea of a monarch.

The Trump legal team may not convince Judge Hellerstein, but the ultimate arbiter of whether Trump can be sentenced and served up to four years in prison may well prove to be six conservative justices on the nation’s highest court.