2d Circuit returns Stormy Daniels/Trump payoff case to SDNY for further review

The Court of Appeals has revived an effort by Donald Trump to remove his New York City criminal case from state court to federal court. Although a jury has already convicted Trump of fraud relating to his $130,000 payout to an adult film star, the federal court will now have to decide how the Supreme Court's recent presidential immunity might impact the conviction.

The case is Trump v. State of New York, issued on November 6. You know this case: it started when Stormy Daniels said she had a one-night stand with Trump many years ago and threatened to publicize the rendezvous prior to the 2016 election. It was believed, at least at that time, that this kind of pre-election revelation might make a difference. Trump's appeal from that conviction is pending in the state appellate courts. But this case, asserting presidential immunity, is another way to attack that conviction.

The case might be suitable for review by a federal court if the evidence at trial touched upon presidential immunity issues. I am sure that paying off Stormy Daniels, by itself, does not qualify as a core presidential function for which the president has complete immunity. There is nothing in the Constitution that speaks to paying hush money to a former lover. But in the immunity decision from July 2024, the Supreme Court also said that even evidence of a president's immunized officials is inadmissible at trial. That means that if the criminal charge does not arise from a core presidential action, i.e., overseeing foreign policy, evidence in support of the criminal charge cannot draw from an official act. 

The Trump legal team argues that the Stormy Daniels conviction incorporated "official acts" evidence: (1) Trump allegedly told his attorney-fixer, Stephen Cohen, that a Federal Election Commission inquiry would be taken care of by the Attorney General, (2) testimony from Trump's Communications Director about private conversations with Trump about Cohen and his activities, and (3) evidence of Trump's official statements in 2018 via Twitter. The jury heard this evidence. Was this evidence enough to upset the criminal conviction? Would the conviction overturned simply because the jury heard this evidence? Nobody knows the answer to these questions.

While the district court in this case rejected Trump's argument that this criminal case should be handled in federal court, the Court of Appeals (Lohier, Carney and Perez) says the district court did not provide a sufficiently comprehensive analysis of this issue. The case thus returns to the Southern District of New York for that analysis. If the trial court again rules against Trump, this case will return to the Second Circuit (unless the state appellate courts throw out the conviction altogether) and if that effort fails, it will proceed to the Supreme Court.

These cases are all taking forever to resolve because we have never had a president who faced criminal charges after leaving office. This unprecedented circumstance has required the state and federal courts, including the Supreme Court, to articulate new legal standards and shoehorn these cases into old legal standards. That process takes time. My guess is it will take a few years for the Stormy Daniels payoff case will not be fully resolved, and if issues like this reach the Supreme Court, how the Justices deal with them is anyone's guess.