Two years after a jury made Donald Trump the first president to enter office as a felon, a New York appeals court is considering his bid to throw out his criminal hush money conviction.
Across more than an hour of oral argument Thursday, five justices of New York's Appellate Division wrestled with Trump's claims that prosecutors misused the law to target him, and that some of the evidence elicited at trial should have been protected by presidential immunity.
"This case was infected by multiple fatal errors under New York and federal law," argued Trump attorney Robert Giuffra.
Prosecutors in the 2024 case alleged a scheme to conceal a $130,000 hush money payment from Trump's then-lawyer to adult film actress Stormy Daniels ahead of the 2016 presidential election. A jury convicted Trump on 34 criminal counts of falsifying bushes records in the first degree -- one for each of the payments Trump made to reimburse his lawyer, which prosecutors say were falsified to conceal their true purpose.
Giuffra's main argument to the court was that prosecutors improperly used a federal law -- the Federal Election Campaign Act -- in state court to secure a conviction. During the trial, jurors were told that to convict Trump for falsifying business records in the first degree, they would need to conclude that the crime was done in furtherance of one of three other illegal acts -- by violating tax laws, state campaign finance laws, or the Federal Election Campaign Act.
"The reason why this case is so important, there's never been a case where a local district attorney -- there's 2,300 of them in the United States -- has ever prosecuted a candidate, a federal candidate, much less a presidential candidate, for a violation [of] FECA," he said.
But the panel of judges questioned whether that argument was enough to justify throwing out the conviction, since FECA was only one part of the state's overall case.
"That's the issue. The defendant was not convicted of violating federal election laws. He was convicted of falsifying business records of a New York enterprise, right?" said Associate Justice Troy Webber. "It's not that he was convicted of violating any type of federal election."
Steven Wu, an attorney for Manhattan District Attorney Alvin Bragg, who brought the case, argued that Trump's argument about FECA has already been rejected twice by a federal court, that the jury had a choice of three violations, and that the federal law only played a "minor role" in their case.
"They were given a menu of options and said from any of these you can draw the inference," Wu said. "The people are not required to establish particular unlawful means under that statute ... it is enough to come in with general evidence of criminal behavior."
Wu also pushed back against Trump's argument that some of the evidence at trial -- including the testimony of former White House Communications Director Hope Hicks, part of Trump attorney Michael Cohen's testimony, and a series of Trump's tweets -- should have been protected by presidential immunity.
At least one the justice's appeared receptive to the argument related to Hicks. Prosecutors had described her testimony about Trump's reaction to the Stormy Daniels story coming out in 2018 as the final "nail" in Trump's coffin.
"I think Mr. Trump's opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election," Hicks testified at trial.
Associate Justice Martin Shulman noted that the testimony "certainly seems to fit within the outer perimeters" of presidential immunity.
"We're talking about certain functions and communicating with Hope Hicks, who was his communication director, on a particular matter that concerned his role as a president and the perception of the public as his role as a president," he said.
Wu argued that Trump's lawyers were overextending presidential immunity to protect his actions, and that the evidence in question was a small part of the case.
"It is just not correct that anything that a president says publicly will qualify as an official act, even within the presumptive outer sphere," he said. "They object to four tweets from the defendant out of five of 500 trial exhibits. This is a drop in the bucket of the evidence that was against the defendant."
After Trump won the 2024 presidential election, he was sentenced to an unconditional discharge -- due to the extraordinary circumstances of him being days away from his inauguration -- and later made his lead defense attorney from that trial, Todd Blanche, the attorney general of the United States.
"It's been a political witch hunt. It was done to damage my reputation so that I'd lose the election, and obviously that didn't work," Trump said during his sentencing.