Trump’s hush money appeal slowly wends its way back toward the Supreme Court

Ahead of Donald Trump’s return to office in January 2025, a divided Supreme Court declined to halt his criminal sentencing in New York.

Over dissent from four of the court’s six GOP-appointed justices, the five-justice majority let the sentencing proceed for two main reasons: One was that Trump was only being sentenced to an unconditional discharge, which is basically a nonpenalty; the other was that “the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.”

Nearly two years later, that “ordinary course” is still unfolding.

On Thursday one of the president’s personal lawyers, Robert Giuffra, was in a Manhattan courtroom to press Trump’s appeal in the so-called hush money case. Those “alleged evidentiary violations” were among the arguments presented to the appellate panel — that is, that some of the evidence used to convict Trump at his spring 2024 trial ran afoul of the presidential immunity ruling the Supreme Court announced that summer.

Trump was convicted of falsifying business records to cover up a hush money scheme in connection with the 2016 presidential race. Although covering up a hush money scheme is not an official act protected by presidential immunity, Trump’s lawyers have cited the immunity ruling’s related prohibition against using evidence of official acts to secure convictions for unofficial conduct. They have pointed to evidence from his first term in office: discussions with White House communications director Hope Hicks, statements on social media, discussion with the attorney general and testimony about White House operations.

Immunity is not the only issue in the appeal. Much of the discussion at Thursday’s hearing focused on Giuffra’s argument that Trump’s prosecution should have been preempted by federal election law.

The five-judge panel posed tough questions to both Giuffra and Steven Wu, who argued to uphold the conviction on behalf of Manhattan District Attorney Alvin Bragg’s office. While Giuffra said the conviction was “infected by multiple fatal errors,” Wu said the prosecution wasn’t preempted, didn’t violate immunity and that any erroneously admitted evidence was harmless in any event, due to what he said was the overwhelming nature of the case against Trump.

However the appellate panel decides to rule, it is not likely to be the last word in this case. There are still New York’s highest appeals court and, potentially, a return trip to the U.S. Supreme Court. Trump’s lawyers have also tried to transfer the case to federal court, but that effort has not been successful.

If and when the appeal returns to the justices, it is likely to meet a skeptical bench that barely let Trump’s sentencing go forward in the first place.

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