President Trump’s last-minute bid, filed in the Southern District of New York, to move his criminal hush money case to federal court from a state court brings into focus his strategy to leverage presidential immunity as a shield against prosecution. 

A Manhattan jury has already convicted Trump 34 times over for violations of New York State law. The presiding state court judge, Juan Merchan, is due to sentence the 45th president, possibly to prison, on September 18. He intends to rule on September 16 whether the Supreme Court’s landmark immunity decision impinges on that verdict two days earlier. 

Trump argues that the Nine’s decision that presidential acts are presumptively immune mandates a reconsideration of the verdict, since some of the evidence adduced by District Attorney Alvin Bragg stems from his time as president. The district attorney has argued that the payments to the adult film star Stormy Daniels, whose real name is Stephanie Clifford, were entirely unofficial. 

Now Trump wants what he alternatively calls a “zombie” and  “purely political New York County” prosecution moved to “an unbiased forum, free from local hostilities, where he can seek redress for … Constitutional violations.” Trump made his first request for removal to federal court before the trial began.

A federal district court judge, Alvin Hellerstein, denied that request. He found that Trump “failed to show that the conduct charged by the indictment is for or relating to any act performed by or for the President under color of the official acts of a President.” 

The former president is pressing his case to the Southern District again, writing that the ongoing proceedings will continue to cause direct and irreparable harm to President Trump — the leading candidate in the 2024 presidential election — and voters located far beyond Manhattan.” If he succeeds, it would be a federal judge, not Judge Merchan, who would decide if immunity applies. 

Trump has asked Judge Merchan to delay his sentencing — the former president faces up to four years in prison, though he could be spared time behind bars altogether — and Mr. Bragg has demurred from opposing that request. In Trump’s request for federal intervention, he wants Judge Hellerstein to bar Judge Merchan from handing down a sentence until the federal judiciary has had its say. 

Legal observers say that an ordinary defendant, with no priors, convicted of the charges for which Trump was convicted, would be unlikely to be sentenced to prison. But Trump is no ordinary defendant, and in the last two years has been repeatedly buffeted by adverse judicial rulings and jury verdicts in both criminal and civil courts in Manhattan, also known as New York County, where he received 12 percent of the vote in the 2020 presidential election.

The 45th president invokes the Constitution’s Supremacy Clause in his push to persuade Judge Hellerstein to swoop in and claim the case. That paragraph of the parchment ordains that “This Constitution, and the Laws of the United States …  shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 

That means that when federal and state law clash, the “Laws of the United States” triumph. Trump argues under the aegis of that rule that the “bias, conflicts of interest, and appearances of impropriety reflected in the New York County proceedings demonstrates exactly the type of local hostility toward federal interests—including a former President of the United States and the leading candidate in the 2024 Presidential election—that the Supremacy Clause was intended to guard against.”

Trump’s notice comprises a generous helping of criticism of  the alleged partiality of Judge Merchan, whose recusal he has formally sought three times.  Trump has called the judge “a true and certified Trump hater,” citing the political activities of his adult daughter, Loren Merchan, who is a partner in a digital marketing agency, Authentic Campaigns, that does work for Democrats, including avowed Trump enemies such as Vice President Harris and Representative Adam Schiff.

Lawyers for the 45th president have also pointed out that Judge Merchan gave $35 to Democrats in 2020, including $15 to Joe Biden, which is a violation of the standards of judicial conduct. Despite these allegations of bias, Judge Merchan has refused to recuse himself and cited guidance from a judicial board which found he does not need to withdraw from the case. 

This week, the House Judiciary Committee formally subpoenaed the head of Authentic Campaigns, Michael Nellis, demanding he sit for a deposition as part of the committee’s investigation into what it called politically motivated prosecutors. Mr. Nellis, an organizer of “White Dudes for Harris,” denounced the committee. 

“Popularly elected prosecutors, such as Manhattan District Attorney Alvin Bragg, have engaged in an unprecedented abuse of authority by prosecuting a former President of the United States and current nominee for that office,” wrote House Judiciary Committee Chairman Jim Jordan.

The former president’s effort to wrench the case away from Judge Merchan could further antagonize the jurist, who has consistently ruled for the government. Judge Merchan could deny Trump’s request for a delay, and hand down a sentence less than two months before November’s election.

He could also exercise his discretion to order Trump to prison, though that decision would be appealable.  Experts in New York criminal law believe that due to the right to appeal, it’s highly unlikely that Trump, even if he receives the maximum sentence, would see the inside of a prison cell for years.

Trump’s efforts to move this “zombie” prosecution — named as such because it languished for years in the district attorney’s office, until Mr. Bragg ultimately decided to prosecute — mirror a similar bid mounted by Chief of Staff Mark Meadows in Georgia. Trump’s former aide-de-camp is his fellow defendant in Fulton County District Attorney Fanui Willis’s sprawling racketeering case relating to efforts to overturn the 2020 election.

Mr. Meadows, who was a Congressman representing a deeply conservative, rural district in North Carolina before he went to the White House, has petitioned the Supreme Court to take his case out of deeply Democratic Fulton County, a majority majority county that comprises much of downtown Atlanta.

He argues that the grant of immunity to presidents also offers some measure of protection to their staff because the “threat posed by prosecutions against federal officers for actions relating to their federal functions does not evaporate once they leave federal office.” The Supreme Court could elect to give a hearing to both Mr. Meadows and his erstwhile boss.